Opinion
2 Div. 160.
November 14, 1940.
Appeal from Circuit Court, Dallas County; John Miller, Judge.
Keith Wilkinson, of Selma, for appellant.
Inadequacy of a remedy at law is the foundation stone upon which equity jurisdiction rests, and it is therefore a fundamental rule that before a complainant is entitled to relief in a court of equity he must have no plain and adequate remedy at law. Price v. Hall, 226 Ala. 372, 147 So. 156. A bill will not lie to enforce a right of redemption from a purchaser at a tax sale unless the complainant be in possession and extrinsic evidence is necessary to show invalidity; the remedy at law provided by Code, §§ 3110, 3111, being adequate, complete and exclusive. Osborne v. Waddell, 176 Ala. 232, 57 So. 698; May v. Granger, 224 Ala. 208, 139 So. 569. The rule fixing the right of one in possession to remove cloud from title or cancel deed held by another, when the bill is not set up in statutory form (Code, § 9905), is that such alleged cloud consists in the fact that while upon the face of the instruments which convey title that of respondent appears to be superior to that of complainant, it is not so in fact by virtue of some circumstance not shown by such instruments, but to establish which evidence aliunde is necessary. King v. Artman, 225 Ala. 569, 144 So. 442; Mayor, c. v. McCormack, 145 Ala. 685, 40 So. 111; Teal v. Mixon, 233 Ala. 23, 169 So. 477. Where bill as originally filed had for its primary purpose removal of a cloud on title, addition of averment by way of amendment to meet requirement for statutory bill to quiet title would not convert original bill into a statutory bill to quiet title. Commonwealth L. I. Co. v. First Nat. Bank, 230 Ala. 257, 160 So. 260.
Wm. R. Rountree, Jr., of Selma, for appellee.
Bill in equity for redemption of land from tax title in nature of bill to quiet title is proper proceeding for owner of lands to bring against holder of a deed conveying tax title to said land under provisions of Code, § 9905, and Chapter 58, as amended by General Acts 1932 and 1935. Ga. Loan Trust Co. v. Washington Realty Co., 205 Ala. 288, 87 So. 794; Threadgill v. Home Loan Co., 219 Ala. 411, 122 So. 401; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202; Bell v. Propst, 220 Ala. 641, 127 So. 212; Chesnutt v. Morris, 223 Ala. 46, 135 So. 344; Morris v. Card, 223 Ala. 254, 135 So. 340; Nat. Fireproofing Co. v. Hagler, 226 Ala. 104, 145 So. 421. The bill as originally filed was good as against demurrer, to bill as a whole, to cancel tax title, and after amendment was in proper form to cancel tax title and quiet title under Code, § 9905. Watson v. Baker, 228 Ala. 652, 154 So. 788. Authorities, supra.
The amended bill has for its purpose the removal of a cloud upon the title of appellee to certain lands specified and described in the bill of complaint, which cloud upon the title is alleged to have been caused by a deed from the State Land Commissioner to respondent.
The last amendment to the bill of complaint was in the following words: "And Complainant further avers that he is the owner and in possession of the aforesaid real property, and that Respondent claims or is reputed to claim some right, title or interest in or encumbrance upon said lands and does hereby call upon Respondent to set forth and specify his title, claim, interest, or encumbrance, as aforesaid, and how and by what instrument the same is derived and created; and Complainant further avers that no suit is pending to enforce or test the validity of such title, claim or encumbrance to or upon the said lands."
As amended the bill of complaint sought to remove the cloud on the title and all other matters indicated are incidental thereto. City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann.Cas. 1915B, 746; Commonwealth Life Ins. Co. v. First Nat. Bank of Birmingham et al., 230 Ala. 257, 160 So. 260. See also Smythe v. City of Homewood, 236 Ala. 159, 181 So. 491; Watson v. Baker et al., 228 Ala. 652, 154 So. 788.
When the several provisions of the amended statute are examined, Gen.Acts 1935, §§ 261, 262, p. 366, it is apparent that they are without application, and do not provide for an adequate remedy at law under the facts stated in the present appeal.
The purpose of the bill by the owner in possession was to remove the cloud from the title to his lands, which was made the subject of his amended bill, and at the same time to ascertain and determine the amount due and required for the reimbursement to the said purchaser from the state for the taxes due by complainant and paid by purchaser to the state. National Fireproofing Corp. v. Hagler, 226 Ala. 104, 145 So. 421.
Under the description employed in the tax assessment on which the sale was rested, extraneous evidence would be required in an action of ejectment to determine or define the exceptions of the smaller tracts of complainant [indicated as owned by Springle, Faulk and Executor, Schwartz and another small portion,] from the 35.5 acres in Section 7, Township 16, Range 11, Dallas County, that were assessed and sold and caused the cloud on the title by the tax agent's deed. Teal et al. v. Mixon, 233 Ala. 23, 169 So. 477.
There was no error in overruling demurrer to the bill as amended. The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and KNIGHT, JJ., concur.