Torrent Fire Engine Co. No. 5 v. City of Mobile

• Court: Alabama Supreme Court
• Writing for the Court: HARALSON, J.
• Citation: Torrent Fire Engine Co. No. 5 v. City of Mobile, 14 So. 557, 101 Ala. 559 (Ala. 1894)
• Decision Date: 09 January 1894
• Parties: TORRENT FIRE-ENGINE CO. NO. 5 v. CITY OF MOBILE. v.

14 So. 557

101 Ala. 559

TORRENT FIRE-ENGINE CO. NO. 5 v. CITY OF MOBILE.

Supreme Court of Alabama

January 9, 1894

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by the Torrent Fire-Engine Company No. 5 against the city of Mobile to quiet complainant's title in certain land. Demurrer sustained, and bill dismissed. Complainant appeals. Reversed.

The bill in this case was filed by the appellant against the appellee; and sought to have the title of the complainant to a certain lot in the city of Mobile established, and the title of the city of Mobile, as it appeared on the records divested out of said city, and removed as a cloud on complainant's title. There were several demurrers interposed by the complainant, which were sustained by the chancellor, and the complainant appeals. Reversed and remanded.

The bill alleged, in substance, that the complainant was a fire-extinguishing corporation, and that as said corporation owned a fire engine and other apparatus, and upon determining to buy a lot, upon which to build a house, it purchased from the defendant the lot now in controversy, and erected a building thereon, which was used as an engine house; that this purchase was made in 1850, and that the complainant took possession thereof at once, and from that time up to the filing of the bill, July 30, 1892, it had been in the exclusive, open, notorious, continuous and undisturbed adverse possession of said property, using and claiming the same openly, notoriously, and continuously as its own property, against all the world; that about a year before the filing of the bill it undertook to sell the said property and complainant discovered for the first time, that the title to said property was still upon the records in the name of the city of Mobile; that upon the request of the complainant the city of Mobile declined to execute a quit claim deed to the purchaser, and has since that time, set up a claim to some interest in the said property. The bill contains the further allegations that the complainant cannot find any deed to it from the city of Mobile, but it charges that the legal title to said property was, in fact, conveyed to it by the said city, and the deed covering the same, was not recorded, and had, in some manner unknown to the complainant, been lost or destroyed. By amendment it was further alleged that if the complainant was mistaken in the allegations of the original bill, and that the property was not, in fact, conveyed to it by the city of Mobile, such conveyance was not recorded, and in some manner was lost or destroyed, still the complainant had a legal title to said property by adverse possession, which was shown by the allegations of the original bill-having been in adverse possession thereof for 40 years. The relief, in its double aspect, as prayed for in the bill, is sufficiently stated in the opinion. The defendant interposed several demurrers to the bill, among which were, that the simple averments of the bill that the deed executed by the defendant to the complainant had been lost, is not sufficient to give equitable jurisdiction; that the averments of the bill were insufficient to give a court jurisdiction to remove a cloud on complainant's title; that by the averments of the bill the complainant is shown to have been guilty of laches in not having, heretofore, asserted his right in the premises; and that it is not shown by the averments of the bill that the complainant had the right to acquire property. The chancellor sustained the several grounds of demurrer, and on this appeal his decree is assigned as error.

Gregory L. & H. T. Smith, for appellant.

Pillans, Torrey & Hanaw, for appellee.

HARALSON J.

The bill in this case is filed in a double aspect: First, on the theory, and on allegations to support it, that the city of Mobile conveyed to complainant the lot of land referred to in the bill, and that the deed conveying the same was not recorded, but was, after the same had been duly executed and delivered, in some manner unknown to complainant, lost or destroyed; and on this aspect of the case, complainant seeks relief, on the ground that the recorded deed of the city from its grantor, executed in the year 1849, is a cloud on complainant's title, which interferes with its making sale of said lot, which cloud, it seeks to have removed by having its title to the property established and quieted, and the property decreed to belong to complainant: second, on the theory, that complainant has the legal title to the property by adverse possession, having, as alleged, been in the exclusive, open, continued, notorious and undisturbed possession and occupation of said property, using and claiming the same openly, notoriously, continuously and adversely against all persons, from 1850, the date of its alleged deed from the city, until the present time, on which ground, it seeks relief; and the relief sought in each alternative aspect of the case, is the same, in that, in each, complainant seeks to have its title established and quieted, and the title vested in the city by virtue of its deed to the...