Walker v. Walker

• Decision Date: 22 December 1955
• Docket Number: 1 Div. 646
• Citation: 84 So.2d 370,264 Ala. 11
• Parties: Lonnie WALKER v. Ola Mae WALKER et al.
• Court: Alabama Supreme Court

Page 370

84 So.2d 370

264 Ala. 11

Lonnie WALKER v. Ola Mae WALKER et al.

1 Div. 646.

Supreme Court of Alabama.

Dec. 22, 1955.

The special plea filed in the cause is as follows:

'Now comes the defendant, Ola Mae Walker, in the above styled cause and for answer to said complaint and to each count contained therein says as follows:

'1. That heretofore Lonnie Walker, the plaintiff in this cause, who is the identical person who was complainant in Equity Cause number 27, 875-E in the Circuit Court of Mobile County, Alabama, Equity Division, did institute a cause in said Circuit Court of Mobile County, Alabama, Equity Division against defendant Ola Mae Walker, who is the identical person named as respondent in the aforementioned Equity cause, praying that said court would enter a decree of cancellation of a deed of conveyance to defendant, Ola Mae Walker, from one C. H. Turner and wife, Hattie Turner, and would quiet title to the real property hereinafter described in complainant, Lonnie Walker, above named in and to the following described property located in Mobile County, Alabama: The north half of the Northwest quarter and the West half of the Northwest quarter of the Northeast quarter of Section 29, Township 2 North of Range 3 West containing 100 acres, more or less;

'Which said property is the identical real property described in the complaint in this cause. Defendant avers that other than the above described real property she disclaims any interest in any of the property claimed in this complaint. Defendant avers that said Equity cause member 27, 875-E above described was duly heard on testimony presented therein and duly considered by said Equity Court in said cause and was dismissed by said Equity Court in a decree which reads as follows:

"This cause is submitted for decree upon the pleadings and testimony offered in open Court, and being considered, the Court is of the opinion that the Complainant is not entitled to the relief prayed for, and it is therefore ordered, adjudged and decreed by the Court that this cause be and hereby is dismissed.

"It is further ordered that the Complainant be taxed with the costs for which execution may issue.'

'Defendant further avers that this cause has been duly adjudicated as to both subject matters and parties, plaintiff and defendant in the aforementioned equity cause. Wherefore defendant, Ola Mae Walker, prays that this cause now pending against her as number 9409 in the Circuit Court of Mobile County, Alabama, Law Division be dismissed with her cost.'

Allan R. Cameron and Caffey, Gallalee & Caffey, Mobile, for appellant.

Curtis L. Moody, Mobile, for appellees.

STAKELY, Justice.

Lonnie Walker (appellant) brought this suit against Ola Mae Walker (appellee) and Anderson Walker in ejectment. The appellee Ola Mae Walker filed no plea of the general issue but filed a special plea alleging in substance that the Circuit Court of Mobile County, In Equity, on a date prior to the filing of the ejectment suit, dismissed a bill of complaint brought by Lonnie Walker against Ola Mae Walker praying 'that said court would enter a decree of cancellation of a deed of conveyance to defendant, Ola Mae Walker, from one C. H. Turner and wife Hattie Turner and would quiet title to the identical real property' described in the ejectment suit. The plea, omitting description of the real estate, will be set out in the report of the case. The court overruled demurrers to this plea. Lonnie Walker thereupon filed eight replications to the special plea.

Replication one was the general replication. Replication seven was withdrawn. Replications two, three and four allege that the equity suit relied on as res adjudicata did not involve the issue as to who was entitled to the possession of the property in that suit and now sued for. Replications five, six and eight allege that the equity suit relief on as res adjudicata did not involve the question of whether complainant in that suit, appellant here, had acquired title by adverse possession against Turner and his grantee Ola Mae Walker. The court overruled the demurrer to the general replication and sustained the demurrers to all the remaining special replications.

The appellant took a nonsuit on account of the adverse rulings of the court on the pleadings and this appeal is to review these rulings.

Our cases hold that 'not guilty' is the only plea in an ejectment suit under which a defendant may introduce evidence and bar a recovery. Metropolitan Life Ins. Co. v. Estes, 228 Ala. 582, 155 So. 79; Fiscus v. Young, 243 Ala. 39, 8 So.2d 514; Boon v. Riley, 171 Ala. 657, 54 So. 997. The plea of not guilty in an ejectment suit is the only plea on which the plaintiff can be required to take issue. Fiscus v. Young, supra; Abates v. Timbes, 214 Ala. 591, 108 So. 534. There appears to be an exception of matter puis darrein continuance, Vadeboncoeur v. Hannon, 159 Ala. 617, 49 So. 292, and also an exception if the action be by a mortgagee against the mortgagor. § 950, Title 7, Code of 1940. We take no account of these exceptions because they are not involved in this suit.

While it is not clear that the appellant by his demurrer to the special plea raised the question of the established rule of pleading in an action of ejectment to which we have referred, the grounds of demurrer which are assigned enable us to reach the same result as we shall undertake to show. Defendant filed a single special plea as an absolute defense to the ejectment suit. In this plea he sought to bar the action of ejectment by alleging that the plaintiff in ejectment had filed a bill in equity to cancel a deed from one C. H. Turner and his wife to defendant Ola Mae Walker and to quiet complainant's title and that the aforesaid bill in equity had been 'dismissed'. It is obvious that the plea which the court held good is not a plea of the general issue. It does not deny the title or the right of plaintiff to possession or allege facts which show that the plaintiff in ejectment does not have title and the right to recover possession. In other words, if every allegation of the plea is admitted, there would be nothing to show the essential fact that the plaintiff did not have title or any right to possession. The bill to cancel the Turner deed and to quiet title could be properly dismissed without any decision on the question of title and right to possession. On its face the plea only shows the cancellation of a particular deed from one who is not alleged to have any title.

It is settled that the exclusive jurisdiction to grant purely equitable remedies such as cancellation will not be exercised in any case where the legal remedy, either affirmative or defensive which the complainant might obtain would be adequate, certain and complete. National Life & Accident Ins. Co. v. Propst, 219 Ala. 437, 122 So. 656; ...