Screws v. Heard

• Decision Date: 03 November 1927
• Docket Number: 6 Div. 905
• Citation: 217 Ala. 14,114 So. 360
• Parties: SCREWS v. HEARD.
• Court: Alabama Supreme Court

114 So. 360

217 Ala. 14

SCREWS v. HEARD.

6 Div. 905

Supreme Court of Alabama

November 3, 1927

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Bill in equity by John T. Heard against John T. Screws and others. From a decree overruling a demurrer to the bill, the named respondent appeals. Reversed and remanded.

Fort Burton & Jones, of Birmingham, for appellant.

Harsh &amp Harsh, of Birmingham, for appellee.

THOMAS J.

The appeal is by one of the respondents to a bill filed "to settle the title to real property and to clear up all doubt and disputes concerning the same."

The statutes having application and often construed by this court are sections 9905, 9906, Code of 1923, and have not been changed since the Code of 1907, §§ 5443, 5444.

It is averred that the parties named had, or asserted, the interest, claim, or title indicated, that no other suit is pending to enforce or test the validity of the title to said land; avers that other named parties of respondents were in possession and refused to surrender the same on demand. The sufficiency of the bill is challenged by demurrer that it does not aver that complainant "is in peaceable possession of lands, whether actual or constructive," etc., as required by statute and the decisions of this court. This is one of the conditions requisite to the maintenance of such suit in equity. Gill v. More, 200 Ala. 511, 517, 76 So. 453; Carr v. Moore, 203 Ala. 223, 82 So. 473; Seeberg v. Norville, 204 Ala. 20, 85 So. 505; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Miller v. Woodard, 207 Ala. 318, 93 So. 28. The earlier cases are collected in 32 Cyc. 1335, note; 21 C.J. 65, note.

The question of paramount title and the right of immediate possession to the land, between the real parties in interest, Screws, with his tax deed and in possession of the land, and complainant, claiming the possession and his asserted superior title through the register's deed illustrated by the rule of record of lis pendens, as to the suit eventuating in the judgment sale and register's deed, can be determined by an appropriate proceeding at law, as ejectment or statutory action in the nature of ejectment.

The demurrer to the bill was improperly overruled. The judgment of the circuit court, in equity, is reversed and the case is remanded.

Reversed and remanded.

ANDERSON C.J., and SOMERVILLE and BRO...