Kinney v. Steiner Bros.

43 So. 25, 149 Ala. 104, 1907 Ala. LEXIS 266

Opinion

McCLELLAN, J. —

Appeal from decree overruling pleas. The bill is filed under Code 1896, § 809 et seq., to quiet, title. In all cases, it is indispensable to the maintenance of such a bill that it be averred, and sustained in the proof, that the . complainant- is in peaceable possession of the subject of the complaint. The title of the complainant is not the prime consideration, but his peaceable possession at the time his bill is filed makes such a prima facie case as will bring into exercise the jurisdiction of the court to the end that the defendant’s claim or right may be determined and declared. — Code 1896, § § 809-812; Kendrick v. Colyar, 143 Ala. 597, 42 South. 110. Section 811 of the Code prescribes what shall appear by the answer, if defendant claim the estate, or any interest in it, and requires specific avowal of the extent, character, and source of his claim. There is no room, under the statute, for a plea. The statute must be pursued. Dan Ch. Pr. pp. 702, 703. Besides, it would be manifestly unnecessary, if permissible, to permit, as some of the pleas do, a mere traverse of facts upon which the survival of the bill depends. The decree is affirmed.

Affirmed.

Tyson, O. J., and Dowdell and Anderson, JJ., concur.