Opinion
8 Div. 477.
June 15, 1933. Rehearing Denied September 28, 1933.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Eyster Eyster, of Decatur, for appellants.
Under the statute and the common law, a suit in equity to quiet title or to remove a cloud from title cannot be maintained unless the bill avers peaceable possession of the land in complainant. Code 1923, § 9905; Price v. Hall, 226 Ala. 372, 147 So. 156; Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473; Burgin v. Hidge, 207 Ala. 315, 93 So. 27; Miller v. Gaston, 212 Ala. 519, 103 So. 541; Cooper v. Cooper, 201 Ala. 477, 78 So. 378. Unassociated adverse claims cannot be determined in a suit for partition of land. Brown v. Feagin, 174 Ala. 438, 57 So. 20; Bullock v. Knox, 96 Ala. 195, 11 So. 339. A bill for partition will not proceed if complainant is relying upon a legal title and defendant is in possession of the land to the exclusion of complainant. Hillens v. Brinsfield, 108 Ala. 605, 18 So. 604; Horton v. Sledge, 29 Ala. 478. In partition proceedings it is not proper to make any one a party defendant without showing in the bill that such person is a tenant in common, and that a partition proceeding would materially affect his claim. Roy v. Abraham, 207 Ala. 400, 92 So. 792, 25 A.L.R. 101; Cross v. Watson, 197 Ala. 171, 72 So. 394; Brown v. Feagin, supra. Where complainant has an adequate remedy at law, equity has no jurisdiction. Price v. Hall, supra. Failure to aver the extent and nature of interest of the tenants in common is subject to special demurrer taking the point. Williams v. Anthony, 219 Ala. 98, 121 So. 89.
E. W. Godbey, A. J. Harris, and Norman W. Harris, all of Decatur, for appellees.
In a suit to sell land for division among the cotenants, the court of equity has power to remove clouds on the title, to determine all claims of cotenants or claimants, regardless of the question whether the claimant is a cotenant or claims through a cotenant, and to pass on all questions necessary to a complete settlement of all questions of title. Gen. Acts 1920, p. 164; Code 1923, § 9334; Sandlin v. Anders, 210 Ala. 396, 98 So. 299; Thomas v. Skeggs, 218 Ala. 562, 119 So. 610. The bill alleges that the Alexanders claim some right, title, or interest in the land, and that complainants are not possessed of knowledge of the nature of such claim. It was not necessary that complainants do more. Appellants know the nature and extent of their interest, which they may set up in their answer. 21 C. J. 399; McNeil v. Morgan, 157 Cal. 373, 108 P. 69; Birmingham, etc., R. Co. v. Mosely, 164 Ala. 111, 51 So. 424; U.S. F. G. Co. v. First Nat. Bank, 224 Ala. 375, 140 So. 755.
The bill in this case alleges that the two complainants and three of the respondents are the tenants in common ownership of the land, each owning an undivided one-fifth interest, but that it has long been in possession of Alexander and his wife, made respondents, and that they long have had and claimed some right, title, or interest in the land, the precise kind of which is unknown to complainants, and seek a sale for division, and to hold the Alexanders personally liable for the rents, income, and profits derived from the use of the land.
It does not seek to adjudge the title of the Alexanders, nor does it allege that they have no title, nor that it be decreed that they have none, nor that if they have any, it be ascertained and given effect.
We must construe the bill by its averments which are most unfavorable to complainants. If appellants have long had title they are not liable for the rents, income, and profits during the period of such ownership; or their claim, whatever it might be, may legally carry a right to such rents and profits.
We think the bill does not allege facts sufficient to justify the relief prayed for against appellants whose demurrer to that feature of the bill was overruled by decree, which they seek by this appeal to reverse. We think the demurrer of appellants to the bill should have been sustained.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.