101 So. 836 | Ala. | 1924
This is a statutory bill to quiet title to a certain vacant lot in the city of Birmingham, filed by appellant against the appellee.
The bill in its allegations met all the statutory requirements. Section 5443 et seq., Code 1907. The answer, however, did not meet the requirements of section 5445 of the Code, in that the respondent did not specify her title, but merely made response by way of the general averment that she was the owner of the property. In cases of this character complainant makes out a prima facie case by proof of peaceable possession and that no suit was pending, so as to cast upon the respondent the onus of showing his claim of right to the property. McDermond v. Hamby,
Complainant's proof discloses, as previously stated, that this was a vacant lot, that she paid taxes thereon, prevented people from cutting the timber therefrom, placed a sign to keep off trespassers, and had the lot fenced and procured the city to place a sewer on the rear end of the lot. In addition to this, complainant testified that at the time of the filing of the bill she was in the exclusive possession of the property, and such, also, is the effect of the testimony of her husband. Possession is a collective fact, to which a witness can testify. Cooper v. Slaughter,
Counsel for appellee lay stress, however, upon a portion of the evidence of the respondent wherein she stated that she was the owner of the property, or had purchased the same for herself. It is not insisted that legal title may thus be shown by a mere verbal declaration to that effect. Higdon v. Kennamer,
In the answer the respondent alleged that she was in fact in possession of the property and the owner of the same, and other averments to constitute a bill to quiet title, and prayed that the answer be taken as a cross-bill, which cross-bill was duly answered. The cross-complainant, however, has wholly failed to establish the allegation of her possession of the property here in question. Indeed it appears without dispute that she and her husband have continuously resided without the state since March, 1917, and has failed to show peaceable possession of the property, either actual or constructive. Manifestly, therefore, the respondent could get no relief by way of cross-bill.
It results, therefore, that under the pleadings and proof in this cause the complainant was entitled to relief, and the cross-bill should have been dismissed. The decree to the contrary will be reversed, and one here rendered in accordance with this opinion.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.