Smith v. Gilmer

• Decision Date: 25 June 1891
• Parties: SMITH v. GILMER.
• Court: Alabama Supreme Court

9 So. 588

93 Ala. 224

SMITH v. GILMER.

Supreme Court of Alabama

June 25, 1891

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

John G. Winter, for appellant.

Watts & Son, for appellee.

CLOPTON J.

The appeal is taken from a decree overruling the motion of appellant to dismiss the bill as to her, for want of equity and also the several grounds of demurrer interposed by her. The bill is filed by appellee against Burke Miller, Melinda Walker, and appellant. Its purposes are twofold,-to compel Miller to execute to complainant a conveyance of the land in controversy, and remove a cloud from the title created by a deed made by Miller to Melinda Walker, and a right or title claimed by appellant under some tax proceeding. As the bill does not aver that appellant traced title from, or had any interest in, or connection with, the several conveyances and the agreement set forth therein,-any privity or community of interest between the appellant and the other defendants,-it is unnecessary to state the allegations on which its equity as to the other defendants is rested.

We need only refer to those averments which concern the equity of the bill as against appellant. The allegations relating to appellant's claim are "that after the execution of the said deed by the said Burke Miller to the said Melinda Walker, in violation of the agreement, a copy of which is hereto attached as Exhibit A, there was an attempted sale of the said lot for taxes as the property of Melinda Walker; and said Pauline Smith claims some right or title to said lands on account thereof, but complainant avers that she has no valid claim. *** The complainant further shows unto your honor that the said Melinda Walker and Pauline M. Smith threaten to sue the complainant for the recovery of the said lot 53, basing their right of recovery upon the said deed executed to Melinda Walker by the said Burke Miller, and on said tax proceedings." A special prayer of the bill is "that your honor will remove any cloud on the title to said lot 53, created by said proceedings to sell said lot for taxes." From these averments and special prayer it is manifest that the sole purpose of the bill, as respects appellant, is the removal of the alleged cloud on the title of complainant, created by the attempted tax-sale, and her claim of right or title thereunder. Its equity, therefore must be determined on the sufficiency of its allegations to show that appellant's alleged claim is of such character as can cast a cloud on complainant's title. As a court of equity will not interfere to remove as a cloud on the title a deed void on its face, or based on a judicial sale under a void judgment or decree, or where the land is sold as the property of a third person, from whom the true owner does not, directly or indirectly, derive title, with whom he is not connected, because incapable of casting a cloud on the title, it is indispensable that the averments of the bill show an adverse title or claim of title capable of assertion in an action of law, and requiring extrinsic evidence to show its invalidity. Though a court of equity has jurisdiction...