Smith v. Cook, 8 Div. 83.

CourtSupreme Court of Alabama
Writing for the CourtFOSTER, J.
Citation124 So. 898,220 Ala. 338
Docket Number8 Div. 83.
Decision Date24 October 1929
PartiesSMITH ET AL. v. COOK.

124 So. 898

220 Ala. 338

SMITH ET AL.
v.
COOK.

8 Div. 83.

Supreme Court of Alabama

October 24, 1929


Rehearing Denied Dec. 19, 1929.

Appeal from Circuit Court, Lawrence County; O. Kyle, Judge.

Bill to establish a disputed boundary line by J. M. Smith and Julia Smith against Jim Cook. From a decree for respondent, complainants appeal. Affirmed. [124 So. 899]

Williams & Chenault, of Russellville, for appellants.

R. L. Almon, of Moulton, for appellee.

FOSTER, J.

The bill in this case was filed by appellants, alleging a dispute between them and appellee as to a portion of the boundary line between two 40's of land owned by them respectively. The bill alleges that appellants and their predecessors have had adverse possession of their 40 up to a certain wire fence, and that appellee claims a strip of land across said fence, and has taken possession of it by building another fence on the land of appellants. The bill is filed, as alleged, to establish the boundary line. There was no demurrer to the bill, but on final hearing relief was denied appellants.

Appellee insists that relief was properly denied because the bill was not sufficient to invoke jurisdiction in failing to allege a request to establish a line before filing the bill, and for not averring a sufficient description of the true line. This view met favor in the circuit court.

The subject of equity jurisdiction to establish disputed boundary lines has given rise to many cases in Alabama. In none of them has the statement been made that the bill is without jurisdictional averment, or even defective, if it fails to allege that there was a request to establish the line. The case of Morgan v. Lake Shore R. Co., 130 Ind. 101, 28 N.E. 548, is cited by appellee, but the opinion is that, unless there is an issue shown, a party should not be harassed with unnecessary litigation, and that the bill shows no request to establish the line. But the bill here alleges a dispute and a claim by appellee that the line extends beyond and over upon the lands of appellants. The other case cited of Forney v. Williamson, 98 N.C. 329, 4 S.E. 483, is without application. This court has recently review the whole subject in Yauger v. Taylor, 218 Ala. 235, 118 So. 271. It is there shown that a bill following the former statute (Code 1907, § 3052, subd. 5) was sufficient to confer jurisdiction in the absence of demurrers, even though it did not aver an independent equity, and that since the present enactment (Code 1923, § 6465, subd. 5) no other allegations are necessary to confer jurisdiction, even on demurrer, than to follow the requirements of the statute. The bill certainly shows a dispute and an issue between the parties. This is a requirement of the statute. There are other similar situations in our system. For instance, to enforce the equity of redemption, it is not necessary to allege an offer to redeem and refusal by the mortgagee, yet, if the facts show that there is no controversy the complainant will be taxed with the cost. Ezzell v. First Nat. Bank, 218 Ala. 462, 119 So. 2; Allen v. Evans, 214 Ala. 106, 106 So. 601; McGuire v. Van Pelt, 55 Ala. 344. A bill for reformation will not be stricken on demurrer for failure to make request to correct the error before suit brought. McCaskill v. Toole, 218 Ala. 523, 119 So. 214, So in a bill for specific performance, a request to perform is not necessary to be alleged, but, if respondent appears and offers to perform, and shows the want of a controversy, relief will be granted but without cost. Robbins v. Battle House Co., 74 Ala. 499; Crawford v. Chattanooga Sav. Bank, 201 Ala. 282, 78 So. 58.

We can see no difference in principle here, even if demurrer had been interposed on that ground; certainly not when there is no demurrer. McWhorter's Case, 204 Ala. 269, 85 So. 386. It may be true that in such a suit the bill should point out the true boundary line as is necessary in framing an issue of such nature at law under section 7457, Code. Smith v. Bachus, 195 Ala. 8, 70 So. 261. And the final decree of the court should describe the true boundary line with reasonable particularity. Alverson v. Floyd, 219 Ala. 68, 121 So. 55, [124 So. 900] Hopkins v. Duggar, 204 Ala. 626, 87 So. 103. But we do not think such averment is jurisdictional, and, in the absence of a demurrer on that ground, relief should not be denied. On decree pro confesso, the court could adjudge that there is a disputed boundary and take the proper steps to fix it and render decree after that had been done.

The bill alleges that appellants own a certain quarter section, and that appellee owns one lying immediately north; that there is a dispute as to the boundary line. It alleges further that appellants and their predecessors have had adverse possession to a certain vaguely described line for twenty years or more, and that, by reason thereof, they are entitled to have it decreed as the boundary line. This is claimed, though such line may extend in point of fact into the 40 acres on the north. It is claimed thereby (and the circuit court held) that the bill is inconsistent, and that it is not the true line between the 40's as properly surveyed which is sought, but appellants in effect seek to recover land not in the 40 alleged to be owned by them. The controversy after all is, as the statute contemplates, a dispute as to the boundary line between property owners. If it is not the true line according to the government numbers which appellants seek, it is none the less a boundary line dispute. The fact that the...

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78 practice notes
  • Ex parte CV
    • United States
    • Supreme Court of Alabama
    • April 27, 2001
    ...on testimony contained in the witness's deposition and not orally presented to the trial judge by the witness in person. Smith v. Cook, 220 Ala. 338, 124 So. 898, 900 (1929). See also Eldridge v. Loftis, 723 So.2d 562 (Ala.1998); Hamrick v. City of Albertville, 238 Ala. 82, 189 So. 545 (193......
  • Watson v. Price
    • United States
    • Supreme Court of Alabama
    • March 3, 1978
    ...Ala. 354, 7 So. 816; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905.' Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900. See Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Guy v. Lancaster, ......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...218 Ala. 235, 118 So. 271; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Smith v. Cook, 220 Ala. 338, 124 So. 898; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558; Wood v. Foster, 229 Ala. 430, 15......
  • McNeil v. Hadden, 4 Div. 737
    • United States
    • Supreme Court of Alabama
    • November 18, 1954
    ...extends in point of fact into the forty acres on the west. The argued grounds of demurrer were overruled correctly. See Smith v. Cook, 220 Ala. 338, 124 So. 898; Jennings v. Perkins, 235 Ala. 32, 177 So. The second assignment of error is that the trial court erred in denying the respondents......
  • Request a trial to view additional results
78 cases
  • Ex parte CV
    • United States
    • Supreme Court of Alabama
    • April 27, 2001
    ...on testimony contained in the witness's deposition and not orally presented to the trial judge by the witness in person. Smith v. Cook, 220 Ala. 338, 124 So. 898, 900 (1929). See also Eldridge v. Loftis, 723 So.2d 562 (Ala.1998); Hamrick v. City of Albertville, 238 Ala. 82, 189 So. 545 (193......
  • Watson v. Price
    • United States
    • Supreme Court of Alabama
    • March 3, 1978
    ...Ala. 354, 7 So. 816; Hopkins v. Duggar, 204 Ala. 626, 87 So. 103; Shepherd v. Scott's Chapel, 216 Ala. 193, 112 So. 905.' Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900. See Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Guy v. Lancaster, ......
  • Branyon v. Kirk, 8 Div. 917.
    • United States
    • Supreme Court of Alabama
    • October 5, 1939
    ...218 Ala. 235, 118 So. 271; Mink v. Whitfield, 218 Ala. 334, 118 So. 559; Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55; Smith v. Cook, 220 Ala. 338, 124 So. 898; Clarke v. Earnest, 224 Ala. 165, 139 So. 223; Baldwin v. Harrelson, 225 Ala. 386, 143 So. 558; Wood v. Foster, 229 Ala. 430, 15......
  • McNeil v. Hadden, 4 Div. 737
    • United States
    • Supreme Court of Alabama
    • November 18, 1954
    ...extends in point of fact into the forty acres on the west. The argued grounds of demurrer were overruled correctly. See Smith v. Cook, 220 Ala. 338, 124 So. 898; Jennings v. Perkins, 235 Ala. 32, 177 So. The second assignment of error is that the trial court erred in denying the respondents......
  • Request a trial to view additional results

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