Ward v. Janney, 104 Ala. 122

Ward v. Janney

104 Ala. 122 | Ala. | 1893

McCLELLAN, J.

This bill is filed by Janney and Cheney, Trustees &c., under the act of December 10, 1892, “To compel the determination of claims to real estate in certain cases and to quiet the title to the same.’ ’ The mere reading of the bill in connection with the statute, in our opinion, suffices to demonstrate that it contains every averment which is necessary under the act to give the court jurisdiction and authorize relief, except in respect of the description of the land as to which it is sought to have the claim of Ward determined and the title quieted. The averment of description is this : “The following real estate situated near the city of Montgomery, Alabama, namely, five acres of land being a part of lot number five according to survey made by A. J. Pickett of the land of Mrs. Westcott.” It further appears that this five acres was leased by complainants’ grantors to Ward “for a truck farm,” and was being occupied by Ward at the time of bill filed. This is wholly insufficient in a case of this character where the decree is not one to be presently executed, but is to stand for all time ás a muniment of title. It may be that upon a decree of sale by such description, a writ of assistance to the purchaser might be. executed by reference to Ward’s occupation, though that is to be questioned, since non constat but that his occupation is not continuous with the five acres as to which the claim sought to be determined is made ; but this occupation is ephemeral in its nature, and would not in after years give any aid to an otherwise imperfect description. That the description *125is otherwise imperfect we think is clear. The land is said to be near Montgomery, Ala. It had belonged to some Mrs. Westcott, constituting a part of a larger tract which A. J. Pickett had surveyed for her and laid off into numbered lots. What these lots contained we are not advised; but it does appear that one of them was numbered five, that this lot contained more than five acres, but how much more does not appear — may be ten acres more, may be an hundred — and that the land in controversy was apart, and only a part, of course, of this larger lot. No fact is stated by which it could be made to appear in the decree what particular five of the fifteen or hundred and five acres of land, as the case might be, was conveyed and the title to it quieted thereby. This does not meet the requirements of law in ordinary cases, which seem to. be accentuated — probably with reference to the fact that the decree is to stand without any thing being done' under it as a muniment of title — by the provisions of this act that the bill shall ‘ ‘describe the lands with certainty.”

Moreover, since we judicially know that lands within two miles of the city of Montgomery, may not be in the county of Montgomery, the bill is bad for the farther reason that it fails to aver that this land is in Montgomery county.

The court below erred, therefore, in overruling the demurer to the bill in so far as it had reference to the description of the land; and its decree must be reversed. The cause is remanded.

Reversed and remanded.