Vaughan v. Palmore
| Decision Date | 11 January 1912 |
| Citation | 176 Ala. 72,57 So. 488 |
| Parties | VAUGHAN ET AL. v. PALMORE. |
| Court | Alabama Supreme Court |
Appeal from City Court of Montgomery; William H. Thomas, Judge.
Suit to quiet title by James Palmore against Frank Vaughan and others. Demurrer to bill overruled, and defendants appeal. Affirmed.
Steiner Crum & Weil, for appellants.
Stakely & Vardaman, for appellee.
The bill in this case is filed under chapter 127 of the Code, §§ 5443-5449, inclusive, to quiet title and determine claims to certain lands described in the bill. The respondents demurred to the bill upon the ground that it failed to allege that the complainant was the owner of the land at the time of the filing of the bill. The trial court overruled the demurrer and respondents appeal.
It is not at all necessary for a bill filed under this chapter of the Code to allege, in terms, that the complainant is the owner of the lands the title to which is sought to be quieted. In fact, the statute provides that when any person "is in peaceable possession of lands, whether actual or constructive, claiming to own the same," and his title thereto is denied or disputed, or any other person claims, or is reputed to own the same, and no suit is pending to test the validity of such title, claim, incumbrance, etc., such person so in possession may maintain a suit under that chapter of the Code.
It is true that section 5444 of the Code provides that the bill must allege the possession and ownership of the complainant but not in terms. The allegation that the complainant was in the peaceable possession of the land, claiming the same in his own right, would be sufficient. The possession and claim of ownership being alleged, and nothing further appearing, the ownership would be presumed. It is not at all necessary that the complaint should set out the evidence, or the facts constituting the evidence, necessary to confer title to the lands in question; nor is it necessary to show ownership in fee or other absolute ownership.
But the original bill in this case alleged in terms that the complainant was in the "peaceable possession of the land," and the amended bill alleged in terms that he was the "owner." While the amended bill did attempt to describe the source and claim of the complainant's title, it was wholly unnecessary, and could be of no possible detriment to the respondents, though it might entail unnecessary burdens of proof on the part of the complainant to support such averments.
If the complainant be in the peaceable possession of the land, claiming to own it in his own right, and the land is also claimed by the respondent, but no suit is pending to test the validity of the claim, this gives the complainant the right to test the validity of the respondent's claim or title. The purpose of the original bill is to ascertain what title, claim, interest, and incumbrance the respondent has, and not that of the complainant, and how and by what interest his title is derived. If the respondent desires to so test the complainant's title or claim, he must do so by a cross-bill.
As was said by this court in the case of Adler v. Sullivan, 115 Ala. 582, 22 So. 87, though a bill sets out the source of the complainant's title and possession, and thus serves to give notice to the respondent of the title and possession on which the complainant relies, in opposition...
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Grayson v. Muckleroy
...47 So. 741; that case-that is, Whittaker v. Van Hoose-being cited as the authority for a like utterance in the more recent case of Vaughan v. Palmore, supra, which was presented here on from a decree overruling the demurrers to the bill. See, also, Fowler v. Ala. Iron & Steel Co., 154 Ala. ......
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...480, Ann.Cas.1917A, 576; Smith v. Irvington Land Co., 190 Ala. 455, 459, 67 So. 250; Stacey v. Jones, supra. The announcements in Vaughan v. Palmore, supra, v. Jones, supra, Smith v. Irvington Land Co., supra, and Rice v. Henderson-Boyd Lbr. Co., 197 Ala. 579, 73 So. 70, are in consonance w......