Merchants Nat. Bank of Mobile v. Morris

• Decision Date: 21 December 1961
• Docket Number: 1 Div. 840
• Citation: 273 Ala. 117,136 So.2d 193
• Parties: MERCHANTS NATIONAL BANK OF MOBILE et al. v. J. D. MORRIS et al.
• Court: Alabama Supreme Court

Page 193

136 So.2d 193

273 Ala. 117

MERCHANTS NATIONAL BANK OF MOBILE et al. v. J. D. MORRIS et al.

1 Div. 840.

Supreme Court of Alabama.

Dec. 21, 1961.

J. B. Blackburn, Bay Minette, and McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellants.

C. LeNoir Thompson, Bay Minette, and Caffey, Gallalee & Caffey, Mobile, for appellees.

LIVINGSTON, Chief Justice.

The controversy now before this Court is over four acres of more or less 'wild' land, in Sec. 38, Township 4 South, Range 1 East, in Baldwin County, Alabama. This property has been the subject matter of litigation on at least four previous occasions.

In 1927, the Circuit Court of Baldwin County, Alabama, in Equity, made and entered a decree quieting title to the land in question in Old Spanish Fort Development Company, a Corporation. There was no appeal from that decree. The Merchants National Bank of Mobile et al. are the successors in title to Old Spanish Fort Development Company.

In 1949, in the case of Merchants National Bank of Mobile et al. v. Morris, et al., an ejectment suit, there was a jury verdict, and judgment rendered thereon, for the defendants. This judgment was reversed by this Court on appeal on the grounds that defendants in that suit were permitted to attack collaterally the 1927 decree. Merchants Nat. Bank of Mobile et al. v. Morris et al., 252 Ala. 566, 42 So.2d 240.

In October 1952, a writ of mandamus was awarded by this Court to vacate an order transferring the cause to the jury docket after parties had consented to a trial without a jury. Ex parte Merchants Nat. Bank of Mobile et al., 257 Ala. 663, 60 So.2d 684. After the writ was granted, the case was tried by the Court without a jury and judgment for the plaintiffs in the trial court was appealed. On appeal, this judgment for the plaintiffs was affirmed, on May 22, 1958. Morris et al. v. Merchants Nat. Bank of Mobile et al., 267 Ala. 542, 103 So.2d 310.

On December 31, 1958, J. D. Morris and D. L. Morris, the defendants in the ejectment suit, filed in the Circuit Court of Baldwin County, Alabama, in Equity, a bill of complaint against the Merchants National bank of Mobile et al., which eventuated in the appeal now presently before the Court. The separate demurrers of respondents named in that bill were overruled and the respondents appealed. The bill itself, and briefs on both sides of the question, are confusing as to the exact issues involved. The appellees on this appeal prepared the bill of complaint and their version of the nature and intent of the bill, as stated in briefs, is:

'The appeal in this case is from a decree overruling a demurrer to a bill of complaint seeking to determine the validity and effect of a decree [the 1927] in a proceeding purporting to be under and in accordance with the so-called statute for quieting title in rem. The bill in the in rem proceeding sought to quiet title to all of Sec. 38, Township 4 South, Ranges 1 and 2 East, in Baldwin County. * * * It is essentially a bill to remove a cloud created by a decree never appealed, and to quiet title, not a bill of review. * * * The relief sought in the present bill * * * involved a direct attack on an equity decree purporting to quiet title * * *.'

It is manifest that the bill in this case is not a bill of review or a bill in the nature of a bill of review.

The appellees contend that the bill was not designed to set aside a decree for fraud in its concoction but is designed for the purpose of setting aside the 1927 decree for the lack of jurisdiction of John L. Alexander (predecessor in title to J. D. Morris and D. L. Morris) in the in rem suit, and for the lack of service of process on him. We note here that appellees, J. D. Morris and D. L. Morris, obtained a deed from John L. Alexander in 1941.

Apt demurrers raised the questions of lack of equity in the bill, the three and ten-year statute of limitations, the rule of prescription and laches.

The ejectment suit disposed of the question of title as between the parties, as we shall demonstrate. We, of course, judicially know the contents of the records of this Court in this particular litigation.

It is true that the case reported in 252 Ala. 566, 42 So.2d 240 was reversed because of the giving of Charge 6, together with a part of the oral charge of the court to the effect that the 1927 decree could be impeached collaterally. In the same judgment of reversal, it was pointed out that the Old Spanish Fort Development Company introduced three recorded deeds which gave the Old Spanish Fort Development Company color of title. Two of these deeds were recorded in October, 1925, and the other one was recorded in April, 1926.

On the second trial of the ejectment suit, reported in 267 Ala. 542, 103 So.2d 310, 311 two of these deeds were admitted in evidence without objection, and the other deed was admitted over the objection of defendants in the ejectment suit. Thus, the Old Spanish Fort Development Company had color of title, beginning in 1925 or 1926. So that the admission of the bill of complaint in the chancery suit and the decree of 1927 were merely cumulative evidence. The judgment rendered on the second trial of the ejectment suit was appealed. On that appeal, this Court said:

'Appellants also insist that they have shown title by adverse possession. In the opinion in the first case we observed--'Moreover, the evidence in the instant case does not show that anyone was in adverse possession of the land when the bill was filed and decree rendered.' In the second trial, the appellants adduced evidence that their immediate predecessor in title, John Alexander, was in possession of the four acres in December, 1927, shortly after the date of the decree in the equity case and he and those holding under him had been in...