Parker v. Miller-Brent Lumber Co.

47 So. 580, 157 Ala. 282, 1908 Ala. LEXIS 174

• Court: Supreme Court of Alabama
• Decided: November 19, 1908
• Status: Published

Opinion

DOWDELL, J.

— One who has acquired a title to land by adverse possession may go into equity for the purpose of removing a cloud therefrom. —Torrent Fire Engine Co. v. City of Mobile, 101 Ala. 559, 14 South. 557; Echols v. Hubbard, 90 Ala. 309, 7 South. 817; Marston v. Rowe, 39 Ala. 722. In order to maintain a bill to remove a cloud from the title, the true test is, would the complainant, on the facts stated in his bill, be required to resort to extraneous proof to defeat an action at law by the respondent suing to recover the land? Where such is the case, resort to a court of equity is authorized. —Allen E. Greene et al. v. Willie E. Boaz et al. Infra. 68, 47 South. 255, and cases there cited.

On the. facts averred in the bill before us it is plain that in an action of ejectment by the respondent, the Miller-Brent Lumber Company, against the complainant, the complainant would be put to extrinsic evidence to show the invalidity of the title of the Miller-Brent Lumber Company. The Miller-Brent Lumber Company, in an action of ejectment, upon the introduction of the muniments of title in evidence, without more, which is alleged in complainant’s bill to constitute a cloud, would make a prima facie case authorizing a recovery. To meet' such a prima facie case, the complainant here would be required to resort to other and extrinsic- evi- ' deuce to defeat a recovery. The case at bar is very much like the case of Greene v. Boaz, supra, in which we held the bill to be properly filed.

The chancellor erred in sustaining the motion to dismiss the bill for want of equity. This decree will be reversed, and one here rendered overruling the motion.

Beversed and rendered.

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