Opinion
7 Div. 642.
February 27, 1941.
Chas. F. Douglass, of Anniston, for petitioner.
The nature and character of the statutory bill is determined from its averments. If upon the facts stated the bill has equity, this is not destroyed by a special prayer for cancellation or for relief not within its scope. Bledsoe v. Price, 132 Ala. 621, 32 So. 325; Stacey v. Jones, 180 Ala. 231, 60 So. 823; Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Davis v. Daniels, 204 Ala. 374, 375, 85 So. 797. The object of a statutory bill, where respondent does not ask affirmative relief, is to determine what interest, if any, respondent has in the property. Stacey v. Jones, supra; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217. The main jurisdictional features are that the complainant has peaceable possession, claims ownership and that respondent claims or is reputed to claim some interest. Non-pendency of a suit is an incident thereto. Gray v. Alabama Fuel Iron Co., 216 Ala. 416, 113 So. 35; Stacey v. Jones, supra. Where bill meets requirements for statutory bill to quiet title, its import is not changed by addition of other features. Cooper v. W. P. Brown Sons Lumber Co., 214 Ala. 400, 108 So. 20; Sloss-Sheffield S. . I. Co. v. Board of Trustees, 130 Ala. 403, 30 So. 433; Douglass v. Standard Real Estate Loan Co., 189 Ala. 223, 60 So. 614; Fowler v. Alabama I. S. Co., 154 Ala. 497, 45 So. 635; Coburn v. Coke, 193 Ala. 364, 69 So. 574; Puterbaugh v. Puterbaugh, 131 Ind. 288, 30 N.E. 519, 15 L.R.A. 341; Wood v. Holliday, 205 Ala. 430, 88 So. 553. Under a statutory bill to quiet title complainant is entitled as a matter of right to have a jury determine the fact issues. Code, § 9908. The remedy is purely statutory, unknown to the common law. Miller v. Gaston, 212 Ala. 519, 103 So. 541.
Merrill Merrill, of Anniston, for respondent.
The equity court is not required to provide a trial by jury for trial of issues of fact in pending cause unless the party seeking same is entitled thereto as matter of right. Code, § 6631. The right to trial by jury in causes seeking to quiet title to land is a statutory right which must be and is contained fully in the statutes relating to same and does not include mere general principles of equity. Code, § 9908. Interstate B. L. Ass'n v. Stocks, 124 Ala. 109, 27 So. 506; Teal v. Mixon, 233 Ala. 23, 169 So. 477; Miller v. Gaston, 212 Ala. 519, 103 So. 541. Code, § 9908, does not apply to a proceeding as set out in petitioner's bill of complaint. Interstate B. L. Ass'n v. Stocks, supra. A statutory bill to quiet title is a thing apart from general equity jurisdiction, and is distinguishable from it. Coburn v. Coke, 193 Ala. 364, 69 So. 574; Cheney v. Nathan, 110 Ala. 254, 20 So. 99, 55 Am.St.Rep. 26.
Petition for mandamus by Bonnie Baird directed to Hon. R. B. Carr, Judge of the Circuit Court, in Equity, of Calhoun County, to compel the issuance of an order or decree directing that the issues of fact in the case of petitioner versus J. Ralph Hamilton and Henry C. Baird, pending in the Circuit Court of Calhoun County, in Equity, be tried by a jury.
Petitioner, complainant in the court below, on March 8, 1938, executed a note, secured by a mortgage on the lands here involved, to secure the payment of an attorney's fee for defending her husband then under indictment, which note and mortgage were transferred by the mortgagees to J. Ralph Hamilton. Under the power of sale contained in the mortgage, after maturity of the note and demand for payment, Hamilton began foreclosure proceedings; and it was while the foreclosure was being advertised that petitioner filed her bill on which this proceeding is predicated.
It is now too well understood and firmly settled for discussion that a trial by jury as a matter of right in a court of chancery depends solely upon statutory or constitutional provisions. Curb v. Grantham, 212 Ala. 395, 102 So. 619; 21 Corpus Juris, 585. That such is the rule is not controverted by counsel for petitioner, but the insistence seems to be that the bill of complaint filed in the case hereinabove mentioned comes within the purview of our statutes to quiet title (section 9905, Code of 1923), and that a jury trial is provided for in such proceedings by section 9908, Code of 1923.
If the bill of complaint in this case is one to quiet title under section 9905 et seq., Code of 1923, the petitioner is entitled to have the issues involved tried by a jury, and the writ of mandamus should issue, otherwise not. The nature and character of the bill must be determined from a consideration of the facts averred in it. Bledsoe v. Price Co., 132 Ala. 621, 32 So. 325.
The bill in the instant case avers the execution and delivery by complainant (petitioner) of the mortgage constituting the alleged cloud on her title. That the mortgage was executed and delivered to secure the debt of her husband; that she was induced to execute the same through fraud, undue influence, etc., and that she was mentally incapacitated at the time she executed the mortgage. The bill prays that the foreclosure of the mortgage be restrained, that the mortgage be cancelled as a cloud on her title, and that the register of the court be directed to enter satisfaction on the record of same in the office of the judge of probate.
The purpose of our statute to quiet title is simply to fix the status of the land in respect to ownership, to re-establish by decree muniments of title to it. Ward v. Janney et al., 104 Ala. 122, 16 So. 73; Cheney, Trustee, v. Nathan, 110 Ala. 254, 20 So. 99, 55 Am.St.Rep. 26. We are not unmindful of the fact that a statutory bill to quiet title may also contain averments of fact on which to predicate relief beyond that provided for in the statute.
Upon the bill as amended as a whole we are constrained to, and so hold, that it is not a bill to quiet title, even though so called by petitioner. It is a bill governed by the general principles of equity.
It follows that the petition for mandamus must be denied.
Writ denied.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.