Gulf Coal & Coke Co. v. Appling

47 So. 730, 157 Ala. 325, 1908 Ala. LEXIS 202

• Court: Supreme Court of Alabama
• Decided: November 25, 1908
• Status: Published

Opinion

DENSON, J.

— This is a bill filed under the provisions of sections 809-813, art. 13, c. 16, Code 1896, to quiet the title to certain lands described therein. According to the statute, such bill may be filed only by a person claiming to OAvn the land. In the recent case of Nashville, Chattanooga & St. Louis Railway v. Proctor, 152 Ala. 482, 44 South. 669, Ave held that an executor or administrator is not, within the contemplation of the statute, the OAvner of the land, and is not, therefore, authorized to maintain a bill to quiet the title to the land OAvned by the heir or devisee of his intestate or testator.

Mrs. Mattie W. Appling, in her representative capacity as executrix of the last wil-1 and testament of W. B. Appling, deceased, is the sole complainant in the present bill. She cannot maintain the bill. It follows that the chancellor erred in decreeing relief to the complainant.

Counsel for appellee, in their brief, request that a decree dismissing the bill be not rendered by this court, but that the cause be reversed and remanded, in order that they may have opportunity, in the chancery court, to amend the bill by making Mrs. Appling, in her individual capacity, sole complainant. The cause was submitted to the chancellor on the pleadings and proof. No offer to amend was made in the chancery court; and this court is of the opinion in this state of the case that the decree of the chancellor should be reversed, and a decree here rendered dismissing the bill; and it is so ordered.

Reversed and rendered.

Tyson, C. J., and Simpson and McClellan, JJ., concur.