Wylie v. Lewis, 6 Div. 691

• Court: Alabama Supreme Court
• Writing for the Court: LIVINGSTON
• Citation: Wylie v. Lewis, 263 Ala. 522, 83 So.2d 346 (Ala. 1955)
• Decision Date: 10 November 1955
• Docket Number: 6 Div. 691
• Parties: J. H. WYLIE, Jr. v. W. Edward LEWIS.

Page 346

83 So.2d 346

263 Ala. 522

J. H. WYLIE, Jr. v. W. Edward LEWIS.

6 Div. 691.

Supreme Court of Alabama.

Nov. 10, 1955.

Embry & Martin and Earl McBee, Birmingham, for appellant.

Chas. A. Speir, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This case is before the court on appeal from a decree of the Circuit Court of Jefferson County, in Equity, overruling respondent's demurrer to an amended bill of complaint.

Complainant, W. Edward Lewis, filed a bill under the provisions of Tit. 7, Sec. 1109, Code of Alabama 1940, to quiet title to certain land situated in Jefferson County, Alabama, title to which he claims to have acquired by tax deed. The amended bill of complaint is sufficient to meet the statutory requirements of a bill to quiet title, but went further in an attempt to allege the complainant's source of title. Respondent demurred, assigning numerous grounds, all of which fall into one of two groups or categories. The first group is to the effect that the bill is prematurely brought for the reason that the three-year period of the 'short statute of limitations' Tit. 51, Sec. 295, Code of 1940, has not expired. The second group attacks the sufficiency of complainant's allegations of ownership, and also contends that the allegations do not show that all the legal requirements for a valid tax sale have been met.

It is well settled in Alabama that in a statutory bill to quiet title it is not necessary that the source of the complainant's title or claim be set out in the bill of complaint; nor is a statutory bill to quiet title which contains all the statutory requirements rendered demurrable because it goes further and states the source of the complainant's title, since such allegation is surplusage. But an allegation of ownership, which is denied in the answer, places on complainant the burden of proving ownership in addition to peaceable possession. Campbell v. Rice, 244 Ala. 144, 12 So.2d 385; Denbo v. Sherrill, 241 Ala. 285, 2 So.2d 773; Venable v. Turner, 236 Ala. 483, 183 So. 644; Stacey v. Jones, 180 Ala. 231, 60 So. 823; Vaughan v. Palmore, 176 Ala. 72, 57 So. 488; Adler v. Sullivan, 115 Ala. 582, 22 So. 87.

In Stacey v. Jones, 180 Ala. 231, 60 So. 823, 824, the court discussed the history and purpose of the statutory bill to quiet title and said:

'It has been frequently pointed out by this court that our statute on this subject is practically, if not literally, taken from the New Jersey statute of 1870. The New Jersey statute had been construed by the New Jersey court when we adopted it, and, as we have repeatedly said, we adopted it with that construction placed upon it. As has been pointed out by that court, the statute is sui generis. It is not primarily to establish a perfect title in the complainant, and to cancel a spurious or invalid title or claim of the respondent, though the result of the suit may have this effect. The primary purpose of the statute is to enable a party who is in the peaceable possession of land, and who, for this reason, cannot maintain an action at law, to compel a party who claims a right, title, or interest in the land, or who is even reputed to so claim, to come into a court of equity and propound and show the nature, character, and kind of his title, claim, and demand, and to have it determined, and to have the court to decree and adjudge whether it is good or bad, and to what extent, and to what part of the land it is good or bad. It is not the object of the original bill to declare what title the complainant has, but what the respondent has; and if the respondent desires to test the sufficiency of complainant's title he must do it by a cross-bill. If the complainant is in the peaceable possession, claiming to own the land, and there is no suit pending by which he can test the...