Kegley v. Rosser

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 256
• Citation: 197 Ala. 109,72 So. 381
• Parties: KEGLEY v. ROSSER et al.
• Court: Alabama Supreme Court

72 So. 381

197 Ala. 109

KEGLEY v. ROSSER et al.

6 Div. 256

Supreme Court of Alabama

May 18, 1916

Rehearing Denied June 30, 1916

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Bill by G.R. Kegley against Mentie Rosser and others quiet title. From a decree dismissing the bill, complainant appeals. Affirmed.

Wright & Fite, of Tuscaloosa, for appellant.

Traweek & Dodson, of Tuscaloosa, for appellees.

MAYFIELD J.

Appellant filed his bill against appellees, to determine and to quiet title to lands, as is authorized by statute. Code, §§ 5443-5449. The suit proceeded to final decree. The hearing was on bill and answer, and proof introduced by both parties. The chancellor, or the judge of the Tuscaloosa county law and equity court, on this hearing dismissed the bill, and complainant appeals.

It is first insisted by appellant that the trial judge erred, to appellant's prejudice, in holding that the burden of proof was on complainant to establish his title. The opinion of the judge is set out in the brief, and parts of it are pointed out as showing the error into which the judge fell. We do not agree with counsel for appellant that the trial judge so ruled, or that the result would or should have been different if he had so ruled.

While the proceeding under the statute, when there is no cross-bill, is to test or determine the defendant's title, and not that of the complainant (and if the defendant attempts to claim and to show title the burden is on him, of course, to do so), yet that rule is of no value in a case like this where the whole proceeding--bill, answer, and complainant's answers to interrogatories, which are in the nature of answers to a bill of discovery--shows that the complainant and the respondents both claim title through a common source. The undisputed evidence shows that the lands in question once belonged to Matt Rosser, and that both parties claim title from him, the complainant, through conveyance from Matt Rosser and wife to one Newton and from Newton to complainant, while the respondents claim as heirs of Matt, who died intestate. So the record shows without dispute that the respondents have title, unless the title passed out of Matt before his death, and that the complainant's title was made out, by all the evidence unless Matt had conveyed in his lifetime. The burden was therefore, of necessity, shifted upon complainant, to show that the title had passed out of Matt before his death. It...