Parker v. Boutwell

• Decision Date: 29 October 1898
• Citation: 24 So. 860,119 Ala. 297
• Parties: PARKER v. BOUTWELL ET AL.
• Court: Alabama Supreme Court

24 So. 860

119 Ala. 297

PARKER v. BOUTWELL ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Pike county; Jere N. Williams Chancellor.

Bill by W. L. Parker against Boutwell & Son. There was a decree for defendants, and complainant appeals. Affirmed.

The prayer of the bill, after asking that Holly and Isaac Boutwell, as individuals and as a partnership, doing business under the firm name of Boutwell & Son, be required to answer plead or demur to the bill, then continues as follows "And upon the final hearing of said cause, may it please your honor to decree and order the cancellation of said deed a copy of which is hereto attached marked 'Exhibit B,' and declare the same to be void, and order its cancellation and removal as a cloud upon orator's title to said land and other property. And may your honor ascertain the value of said property hereinbefore described taken and converted by the said Holly and Isaac Boutwell, or by the said Boutwell & Son, and also ascertain the value of the buildings which were torn down on said land, or which were authorized to be torn down on the same, by the said Boutwell & Son, or by Holly and Isaac Boutwell or either of them, together with the interest thereon; and also ascertain the amount which said Boutwell & Son have paid out for taxes on said property or for the purchase of the same at said tax sale, and which they are legally entitled to have paid to them in equity and good conscience, and subtract said amount which the said Boutwell & Son or Holly and Isaac Boutwell or either of them are entitled to receive as having been paid out by them, and the interest thereon as provided by law, and for the amount for which your orator is entitled to recover from the said Boutwell & Son and Holly and Isaac Boutwell for the conversion of said property and the tearing down or destruction of said buildings on said land, and render a decree in favor of orator for said balance on account of said conversion and injury to the buildings on said land. And may your honor also require said Boutwell & Son and Holly and Isaac Boutwell to propound and make known to the court whatever claim, interest, title or right they have in and to said land hereinbefore described, setting forth fully their title upon which said claim is based, and upon a final hearing of said cause, if orator is mistaken in the relief herein specifically prayed, to which he is entitled, may your honor grant unto grantor all such other, further and general relief as in equity and good conscience he is entitled to, the premises of his bill being considered, and as in duty bound he will ever pray."

The defendants demurred to the bill upon many grounds, assigning in various ways that the bill was multifarious and that it was without equity. They also made a motion to dismiss the bill for the want of equity.

Upon the submission of the cause upon the demurrers and the motion, the chancellor sustained the demurrer and motions, and ordered the bill dismissed. From this decree the complainant appeals, and assigns the rendition thereof as error.

R. L. Harmon, for appellant.

A. C. Worthy, for appellees.

HARALSON J.

The bill in this case, it is true, avers that Boutwell & Son, the defendants below, and the appellees here, "assert and claim a right to said lands, and claim that they have a title to the same;" and the prayer, among other things is, that defendants "propound and make known to the court whatever claim, interest, title or right they have in and to the said land hereinbefore described, setting forth fully their title upon which said claim is based." Except for the foregoing averment and part of the prayer, there is nothing in the bill to indicate that it was filed under the act of December 10, 1892, "To compel the determination of claims to real estate in certain cases and to quiet the title to the same." Acts 1892-93, p. 42. Its frame, however, in other respects and its prayer do not so indicate, and it is lacking in other averments to bring it under said act. The prayer, taken as a whole, indicates it was filed for a different purpose, and upon a different theory, as will appear. That statute provides: "That when any person in peaceable possession of lands, whether actual or constructive, in this state, claiming to own the same, and his title thereto, or any part thereof, is denied or disputed, or any other person claims, or is claimed or reputed to own the same, or any part thereof, or any interest therein, and no suit shall be pending to enforce or test the validity of such title, claim or incumbrance, it shall be lawful for such person so in possession to bring and maintain a suit in equity to settle the title of said lands," etc. The bill was filed on the 12th of May, 1897. Under said original act of 1892-93 we apprehend the averment that no suit is pending to enforce or test the validity of such claim or incumbrance is an averment essential to the maintenance of a bill. The present bill contains no such averment. The object of this necessary provision of the statute was, to show that complainant was in the "peaceable possession" of said land, undisturbed by pending litigation. Unless one should be in the peaceable, undisturbed possession of the land, the condition upon which the statute authorizes a suit to be instituted thereunder, would not exist. Adler v. Sullivan, 115 Ala. 583, 22 So. 87; Loeb v. Wolff (Ala.) 22 So. 513.

The bill in its general averments and prayer was designed as one to remove a cloud on complainant's title to the land, and to recover damages for a tort committed by respondents in taking and removing from the land certain personal property described in the bill and converting the same.

The solicitor of the appellant makes in his brief a correct statement of the facts of the case, as follows: "The bill in this case was filed in office on May 12, 1897, and seeks to have canceled the deed...