43 So. 202 | Ala. | 1907
Mrs. Zedora Hoven sued J. A. Bolen, in an action of ejectment in the circuit court of Clarke county, to recover certain real estate located in the town of Jackson, in said county. Judgment was rendered in her favor against Bolen for the lands sued for. A writ of possession, issued on the judgment, was placed in the hands of R. G. Allen, sheriff of Clarke county, to he executed. Thereupon Bolen filed this bill in the chancery court against Allen and Mrs. Hoven. In the bill it is averred .that a certain strip of1 land, particularized therein, is not embraced in the complaint, the judgment in- the ejectment suit, or in the writ of possession. It is also averred that complainant’s residence is located on the particular stiip of land, and that the sheriff, acting under the directions of Mrs. Hoven, has demanded of complainant possession of the residence under the writ, and threatens to put him out of possession of the strip of land and the residence. It is then averred that Mrs. Hoven “claims a right to- said property (strip of land) under and by virtue of her judgment in the ejectment suit or under some other right.” The prayer of the bill .is that Mrs. Hoven be required to specify her title or claim to the said strip1 of land, and by what instrument the same is derived.; that on the final hearing
The gist of the hill is really an effort on the part of complainant to have the chancery court determine whether the land on which complainant’s residence is located is embraced in the description contained in the writ of possession; in other Avorcls, to have that court determine a dispute between complainant and Mrs. Hoven as to what is covered by the description in the writ. The insistence of the complainant (appellant,) however, is that the bill seeks to compel the determination of claims to land and quiet titles under sections 809-813 of the Code of 1896. The bill fails to aver that no suit is pending to enforce or test the validity of Mrs. Hoven’s title or claim; and, taking the averments of the bill most strongly against the complainant, it would seem that Mrs. Hoven’s contention is that the land now claimed by the complainant was involved in the ejectment suit, and the title Avas there determined to be in her. Certain it is that this contention is emphasized by the denials and affirmative averments in Mrs. Hoven’s answer.—Parker v. Boutwell & Son, 119 Ala. 297, 24 South. 860; Moore v. Ala. National Bank, 139 Ala. 273, 35 South. 648. HoAvever this may be, it is obvious that the bill fails to present” a case Avithin the purpose of
As this court said, through Tyson, J., in Inglis v. Freeman, 137 Ala. 300, 34 South. 394, quoting from Jersey City v. Lembeck, 31 N. J. Ep. 255: “The inequity that was designed to be remedied grew out of the situation of a person in the possession of land as owner, in which land another person claimed an interest which he would not enforce; and the hardship was that the person so in possession could not force his adversary to sue and thus put the claim to test.”—Fleming v. Moore, 122 Ala. 399, 26 South. 174; Weaver v. Eaton, 139 Ala. 248, 35 South. 647; Adler v. Sullivan, 115 Ala. 582, 22 South. 87. If the strip of land particularized in the bill is not covered by the description in the process in the hands of the sheriff, he has no authority by it to disturb the complainant’s possession, and, if he should do so, he would be guilty of a. trespass. In such a state of the case, for the plaintiff to disturb the complainant’s possession would be an abuse of process, a remedy for which is given by section 93.9 of the Code in the circuit court, whence the process emanates.—Triest v. Enslen, 106 Ala. 180, 17 South. 356; Baldridge v. Eason, 99 Ala. 519, 13 South. 74. In its final analysis we think the bill only presents a case to enjoin the sheriff from disturbing complainant’s possession under process that does not cover the particular land. In this view of the case, the complainant’s remedy at law is full, complete, and adequate. This is the view that was taken of the case by the chancellor, and the decree appealed from will be affirmed.
Affirmed.
