Federal Land Bank of New Orleans v. Vinson

*97 BROWN, Justice. This appeal is from an interlocutory decree overruling the defendant’s demurrer to the bill and refiled to the bill as amended. The bill is filed to quiet title to a tract of land situated in Barbour County, and specifically described. The procedure is authorized by Sections 1109, 1110 and 1111 of the Code of 1940, Title 7. Said Section 1110 provides: "Contents of bill. — The bill authorized by the preceding section must describe the lands with certainty, must allege the possession and ownership of the complainant, and that the defendant claims or is reputed to claim some right, title, or interest in or incumbrance upon such lands, and must call upon him to set forth and specify his title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created.” And Section 1111 provides: "Contents of ar.swer. — If the defendant shall answer claiming any estate or interest in, or incumbrance upon the lands, he must, in his answer, specify and set forth the title, claim, interest, or incumbrance so claimed, and if not claimed in or upon the whole of such lands, he must specify and describe with sufficient certainty, the part in or upon which the same is claimed, and the manner in which, and the sources through which such title, claim, interest, or incumbrance is claimed to be derived and created.” Code of 1940, § 1111, Title 7. The bill in this case follows the prescription of this statute in so far as it requires a specific and certain description of the land, and the allegation of ownership and possession of the complainant, and then particularizes and sets out the source and muniments of the complainant’s title, and the source of the defendant’s claim of title and incumbrance. Stated otherwise, instead of the complainant being content to call upon the defendant “to set forth and specify his title, claim, interest, or incumbrance, and how and by what instrument the same is derived and created,” as prescribed by the statute, he proceeds to set forth the basis of the defendant’s right, including a mortgage incumbrance assumed by the complainant to the defendant, executed by Smith in his purchase from the defendant, and assumed by the complainant in his redemption from Smith, and the reservation by the defendant of a half interest in the mineral rights in the conveyance to Smith. The purpose of this departure from the prescription of the statute, it would seem, was' to have the controversy as to these rights determined on demurrer to the bill. The statute did not contemplate this course of procedure, and such procedure was condemned in the application of this statute soon after its enactment in Cheney, Trustee, v. Nathan, 110 Ala. 254, 265, 20 So. 99, 102, 55 Am.St.Rep. 26, where it was said: “We do not construe the statute under which this bill was filed (Acts 1892-93, p. 42) to authorize any affirmative relief to the defendant, coming into the case only by answer, propounding his claim of title or interest to or in the land, and praying no relief, except to adjudge whether he ‘has any estate, interest, or right in, or incumbrance upon, said lands, or any part thereof, and what such interest, estate, right, or incumbrance is, and in or upon what part of said land the same exists.’ The purpose of this statute is simply to fix the status of *98 the land in respect of ownership, to reestablish by the decree muniments of title to it. Ward v. Janney et al. [104] Ala. [122], 16 So. 73. And, upon a bill filed under the statute, and to which only the answer provided for by it is interposed, only the statutory relief can be awarded.” And, again, in Adler, et al. v. Sullivan, 115 Ala. 582, 585, 587, 22 So. 87, 88, where it was observed: “The final decree shall settle the rights of the parties in the lands, which shall be binding and conclusive upon them. * * * ‘The purpose of the statute (as we said in Cheney [Trustee] v. Nathan, 110 Ala. 254, 20 So. 99 [55 Am. St.Rep. 26]), is simply to fix the status of the land in respect to ownership,'—to reestablish by decree muniments of title to it.’ Without the answer, to the case as made by the bill, such a decree could never be rendered. * * * From what has been said, it is manifest, that the defendants in their demurrer, are in anticipation, of their rights and remedies under the bill as filed.” (Italics supplied.) In that case the bill in addition to the required averment prescribed by the statute, merely declared the source and quality of the complainant’s title, and these averments were treated as surplusage, and not essential to the equity of the bill, and the decree overruling the demurrer was affirmed. See Denbo v. Sherrill et al., 241 Ala. 285, 2 So.2d 773; Grayson v. Muckleroy, 220 Ala. 182, 185, 124 So. 217. The bill in the instant case goes further than did the bill in the Adler case, supra. Here, the bill sets up the .character and source of the defendant’s claim and title, and construing the allegations of the bill most strongly against the pleader, they show that the defendant has the legal title to the property through the mortgage executed by Smith for the purchase money, carrying a personal liability on the part of Smith which has been assumed by the complainant with legal effect of making him the principal payor. McKleroy v. Dishman, 225 Ala. 131, 142 So. 41; 37 Am.Jur. 316, § 982. Whether or not the defendant, Federal Land Bank, acted within the power granted to it by Congress in attempting to reserve to itself an undivided one-half interest in the mineral rights in the mortgaged property, alleged to have been redeemed by the mortgagor, is a question that cannot be satisfactorily disposed of on demurrer, where we must resolve intendment in the allegations of the bill against the pleader. Federal Land Bank of New Orleans v. Mulkey, 228 Ala. 500, 153 So. 775. If, as the appellee contends in brief, though this does not appear on the face of the bill when its allegations are construed most strongly against the pleader, the complainant effected a completed redemption of his property in pursuance of the statutory right of redemption, paying the debt and lawful charges, he is entitled to have his property restored to him without diminution by reservations made by the mortgagee. Resolving intendments against the complainant, as must be done on demurrer, the transaction between Smith and the complainant was a repurchase, rather than a redemption; hence complainant acquired only such interest as Smith purchased from the defendant, and it holds a purchase-money mortgage, assumed by complainant, and an undivided interest in the mineral rights. These allegations cannot be treated as mere surplusage on demurrer. We are therefore of the opinion that grounds 3, 8 and 9 of the demurrer to the bill and to the bill as last amended were well taken and that the court erred in overruling the demurrer. Wilkes v. Hood et al., 237 Ala. 72, 185 So. 748; Garrett v. Federal Land Bank, 239 Ala. 191, 194 So. 530. Reversed and remanded. All Justices concur.