70 So. 134 | Ala. | 1915
“The true test recognized by the authorities in this state [is] : Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary the cloud would exist; if the proof would, be unnecessary, no shade would be cast by the presence of the deed. If the action would fall of its own weight, without proof, in rebuttal, no occasion could arise for the equitable interposition of the court.” — Rea v. Longstreet, 54 Ala. 291, 294; Rankin v. Dean, 173 Ala. 60, 63, 55 South. 217, among others.
It is a clear mistake to interpret the language quoted to the effect we have stated. ;There the court was concerned with the allegations of a bill — a bill averring that the land was the separate statutory estate of the wife [complainant], purchased with her own funds from a third party. Subsequently, judgment creditors of the complainant’s husband caused writs of attachment to be levied upon those lands of the wife to satisfy adjudicated demands of the husband. The wife (complainant) sought by her bill to discharge the levy of the writs of attachment on her land, with the view to averting and' avoiding the cloud upon and the clouding of her asserted title to the lands subjected to the levy. The court concluded, as upon the averments of the bill, that this levy upon, and the threatened and impending effort to sell, the land did not and would not cast any shade upon the alleged title of the complainant, she having acquired her asserted title — not through her husband or from any common source with him, the defendant in the writs of attachment — with-her own means, from a third party. The sum of the ruling on the pleading was that a levy upon and sale of land as the property of a complete stranger to the title could cast no shade upon the title of the true owner; and hence such levy and sale, if undertaken to be made, did not, would not, afford any ground for inference or action by a court of equity in virtue of its authority to prevent or to remove clouds upon titles.
The decree appealed from is well grounded. It is affirmed.
Affirmed.