Thompson v. Leyden

• Decision Date: 16 October 1930
• Docket Number: 7 Div. 959.
• Citation: 130 So. 780,222 Ala. 81
• Parties: THOMPSON v. LEYDEN ET AL.
• Court: Alabama Supreme Court

130 So. 780

222 Ala. 81

THOMPSON v. LEYDEN ET AL.

7 Div. 959.

Supreme Court of Alabama

October 16, 1930

Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.

Bill to remove cloud from title to lands by Julia Erle Thompson against Theodocia Leyden and Samuel R. Leyden, with a cross-bill by respondent Theodocia Leyden. From a decree overruling a demurrer to the cross-bill, complainant appeals.

Affirmed.

S. W Tate, of Anniston, for appellant.

Merrill Jones & Whiteside, of Anniston, for appellees.

THOMAS J.

The appeal seeks to review the action of the trial court in overruling demurrer to the cross-bill.

The original bill had for its purpose the removal of a cloud upon the title of real property. The respondent is called upon to set forth and specify her right, title, claim, interest, and incumbrance upon said land, "and how and by what instrument the same is derived and created." Complainant alleges that respondent has no such right, interest, or incumbrance upon said land, and prays that upon final hearing the court will decree that she owns the lands in fee simple and, if mistaken in this, she prays for other and further and different relief as in equity and good conscience she is entitled, and "prays for general relief."

The ground of demurrer to the bill is that "there is no equity in said bill," and, the same being overruled, the bill was amended as to averment of the name of one of the parties respondent. There was an amended answer and cross-bill filed, alleging, among other things, that, if complainant has an interest in said lands, it "is only a life estate" which was acquired through a conveyance to her on August 28, 1928, by respondent Sam R. Leyden, which instrument is exhibited and attempts to convey the full title. It is averred that, at the time of the conveyance to complainant, grantor "owned only a life estate" and this respondent, Theodocia Leyden, "owns the remainder in said property" as alleged to be indicated in the deed from W. J. Edmondson to Sam R. Leyden of October 14, 1909, and exhibited. It is further averred that respondent Theodocia Leyden is "an only daughter and child of said grantor W. J. Edmondson; and Sam R. Leyden is the son of this respondent, and said Edmondson is now dead; that Sam R. Leyden and the complainant, Julia Erle (Leyden) were husband and wife at the time of the execution of said deed, they were since divorced, and complainant has since married Mr. Thompson, and they are now nonresidents; that Sam R. Leyden is a single man and has no children.

It is averred, of said lots specifically described, that complainant "has no right, title or interest in the same, except as is shown by copy of deed from respondent and her husband John P. Leyden, to Samuel R. Leyden, hereto attached and marked 'Exhibit C,' and leave of reference thereto as often as may be necessary is hereby prayed. *** That since the filing of this suit, and the filing of respondent's answer and cross (bill) the mortgage set out and referred to in paragraph three of respondent's original answer and cross bill has been paid by the complainant."

The respondent to the cross-bill (original complainant) demurred to the cross-bill, and the same was overruled, and complainant was taxed with the costs and given twenty days in which to file her answer to said cross-bill and appeals.

It is proper, in a suit to quiet title under the statute, for the respondent to duly set up his claim or right by way of a cross-bill when he cannot obtain full relief under the issues tendered by the original bill, and have the title of complainant settled, and the affirmative relief prayed for by the decree "define the interest she (complainant) has in said land or tracts of land, and that the title to said land, and each tract thereof, be settled as between the parties," etc. Manning v. Manning, 203 Ala. 186, 82 So. 436; Davis v. Daniels, 204 Ala. 375, 85 So. 797; Smith v. Rhodes, 206 Ala. 460, 90 So. 349; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217.

If from the language of the whole instrument or conveyance, the intent to create a conditional estate is unequivocal and clear, that expressed purpose will be given effect, unless to do so would offend the law and public policy of the state. Libby v. Winston, ...