Moore v. Alabama National Bank

35 So. 648, 139 Ala. 273, 139 Ala. 275

• Court: Supreme Court of Alabama
• Decided: November 15, 1903
• Status: Published

Opinion

HARALSON, J.

The bill was filed under sections 809-813 of the Code, which have reference to “the determination of claims to lands and to quiet title.” Section 809 provides, “that a person answering the condition therein, when his title to the lands, or to any part thereof is denied or disputed, or any other person claims or is reputed to own the same, or any part thereof, or any interest therein, or to hold any lien or incumbrance thereon, and no suit is pending to enforce or to test the validity of such title, claim or incumbrance,” may “maintain a suit in equity to settle the title to such lands, and to cleai' up all doubts or disputes concerning the same.”

The bill, not following the provisions of this section in reference to the pendency of any suit “to enforce or to test the validity of such title, claim or incumbrance,” simply averred, “there is now no suit pending between your oratrix and said Alabama National Bank, to enforce or test the validity of such alleged title or claim.” For this failure in the bill to follow this requirement of the statute, the defendant questioned its sufficiency by demurrer, which the court sustained, giving the complainant fifteen days within which to file an amendment.

It thus, appears that the allegation of the bill, called in question by demurrer, was not made from mere want of caution on the part of the pleader, but was the result of deliberation, on which he desired to risk the equity of the hill. It will he seen, that the averment does not follow the language of the statute, but is a departure therefrom. The language of the bill as to the pendency of a suit is, as has appeared, that there is no suit pending between complainant and defendant, “to enforce or test the validity of such alleged title or claim ” of defendant to the lamí, whereas, the provisions of the statute as to this matter is, that “'no suit is pending, (not between complainant and defendant) to enforce or test (not defendant’s title or claim as is averred, but) the validity of such title, claim,, or incumbrcmee/■ It may well he conceived,' — admitting the truth of the averment of the hill, that there was no suit pending between the complainant and defendant for the purpose specified, — that there may have been a suit pending between the defendant and some one else, in which the title to complainant to the lands might he determined; and that, aside from the mere question of title, the defendant might have held “a lien or incumbrance!’ on the land, which there was a pending suit to determine. This averment of the bill falls short of statutory requirements for the maintenance of a hill of this character. — Weaver v. Eaton, ante p. 247; 35 So. Rep. 647. We are impressed it is the safer and better rule to require the bill, in this respect, to preserve substantially the language of the statute. The chancellor did not err in his ruling.

Affirmed.