154 So. 788 | Ala. | 1934
The bill was filed to clear title.
The effect of the statute, section 9905, Code, and the decisions thereunder, were indicated by Mr. Justice Bouldin in Hicks v. Stone,
The rule indicated in Hicks v. Stone, supra, is the rule that obtains, notwithstanding the expressions in the earlier cases. Lyon v. Arndt,
The purpose of this appeal appears to be to test the averments in respect to the possession and right of the complainants stated in the original bill as supplemented by amendments. In the respects we have indicated, it is averred complainants "are now in peaceable possession (does not state whether actual or constructive), claiming to own the legaltitle in fee simple, and complainants aver that no suit is pending to enforce or test the validity of the title of your complainants." (Italics supplied.)
Is this in the terms of the statute, though the pleading does not disclose whether the peaceable possession, averred to be held by complainants, was actual or constructive, alleging that complainants are "claiming to own the legal title in fee simple," and not employing the exact language of the statute, "claiming to own the same in his own right"? By amendment there was added to this averment (by substituting paragraph A for paragraph 2) the following: "Your complainants respectfully show unto your Honor that they are in peaceable possession of and are claiming ownership in their own right in and to the following described real property located in Jefferson County, Alabama, viz."
In Rice v. Park,
In Hobson v. Robertson,
We find no error in overruling the grounds of demurrer directed to the failure of the bill to aver other than was done in the instant case — that complainants "are now in" or were in peaceable possession of the land when the suit was brought (Hicks v. Stone,
The bill is challenged on the further ground that it did not call upon respondent "to set forth and specify his title, claim, interest or incumbrance." In this case complainants set up the tax title under which respondent is alleged to hold, but do not call upon him to set forth and specify his title, claim, interest, or incumbrance upon the land, and how and by what instrument the same is derived and created.
Under the statute it was necessary to so call upon the respondent to specify the claim, title, or incumbrance he wishes to defend upon as provided in section 9906, Code, and not to confine him to the supposed or alleged title that complainants ask to be canceled. Pace v. Robertson Banking Co.,
The bill does not allege there is "no suit pending to enforce or test the validity of such title, claim or incumbrance"; it merely alleges that no suit "is pending to enforce or test the validity of the title of yourcomplainants." This is not a sufficient averment. Parker v. Boutwell Son,
It is declared in Moore v. Alabama National Bank,
In the overruling of demurrer on this ground there was error directed, as it was, against the bill as one to clear title.
In the following cases the owner, as complainant, claiming title in his own right, in peaceable possession of property sold at tax sale, was permitted to redeem and cancel the tax deed by a bill in equity: National Fireproofing Corporation v. Hagler,
The case of Bracely v. Noble,
In Chestang v. Bower,
The bill, as a statutory bill, was subject to demurrer, as that to remove a cloud from the title for failure of averment, as we have indicated. King v. Artman,
It is insisted by appellees, that the bill is sufficient, irrespective of section 9905, Code, because by complainants in peaceable possession claiming ownership, who seek cancellation of the tax deed which is outstanding in the respondent, the invalidity of which does not appear as a matter of record, but rests upon matters aliunde. King v. Artman, supra. That is, that the equity in this bill and that in the King Case was to cancel and remove as a cloud on the title of complainant, though not alleged by express averment to be a "cloud" in the King Case, and so prayed in this case to be a cloud and to becanceled as a "cloud."
On this phase, appellees' counsel says: "In the case at bar, the bill is to cancel and remove a tax deed as a cloud upon the title of complainants. We submit, therefore, that if it be conceded for the sake of argument, that the bill in the case at bar is not a statutory bill, yet said bill is sufficient under authority of King v. Artman, supra, as in that case, so it is in the case at bar, evidence aliunde is necessary to show invalidity of respondent's tax title. The bill in the case at bar alleges that complainants are in peaceable possession, claiming ownership of the property, the subject-matter of this suit; that the respondent has a tax deed to said property; and that the complainants are seeking the cancellation of the tax deed (as a cloud on complainants' title, we interpolate), which is outstanding in the respondent, the validity of which does not appear as a matter of record, but rests upon matters aliunde;" and it is urged within the purview of King v. Artman,
We have indicated that the bill is not sufficient as one to clear title under section 9905 of the Code, and are of opinion that the recent decision in King v. Artman, supra, saves the amended pleading (lacking the essentials of a statutory bill) from grounds of demurrer directed thereto, as a bill for redemption and cancellation of the tax deed which is alleged to be outstanding in the respondent. As to this, the pleading prays for redemption and cancellation of that deed as a cloud on complainants' title and as being a tax deed to respondent purchaser at tax sale under an assessment as "owner unknown." As to this assessment it is alleged that the same was made when "the complainants were in actual, peaceable, adverse and notorious possession of said property claiming ownership thereof in fee simple in their own right"; that the tax collector sold a part of said property (describing it) at public outcry to respondent for $12.83 taxes; that neither of the complainants was "served with a written notice of the purchase of said property by the purchaser, W. H. Watson (appellant), in the manner provided by § 3109 of the Code"; that neither of the appellees had knowledge of said tax sale until the latter part of June, 1932, when respondent informed one of the complainants that he (respondent) was claiming said property by virtue of said tax deed. These facts were matters to be shown by evidence aliunde.
The demurrers were directed to the amended bill as a whole, and there was no error to reverse (Wood v. Estes,
The decree of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur. *656