Teal v. Mixon

FOSTER, Justice. The bill in this suit seeks to have a cloud removed from the title to the land in which complainants assert the reversionary ownership after the death of their .father, who, it is alleged, has a life estate which has been acquired from him by respondent. It alleges that their father, David Teal, owner of a life estate,, has sold the land to various and sundry persons, and that respondent has acquired such interest through various convey *25 anees, and that he is claiming an absolute title in fee, but only owns such life estate of David Teal, and is in possession of it. The prayer is that a decree be entered declaring that he has only an interest during the life of David Teal, which will terminate at his death, and that each of respondent’s deeds, or other muniments of title, which are on record, be limited to the life of David Teal, and that complainants own the remainder, which shall become absolute at the death of David Teal. There arc various grounds of demurrer, of which some are, that complainants are not in possession, have an adequate remedy, with no present right to possession, and that there is no averment that David Teal made a deed which purports to convey the fee, and which includes the interest of complainants and which casts a cloud on their title. It is perfectly well settled that a remainderman not in possession, and with no right to the immediate possession, may maintain a hill to remove a cloud from his remainder interest pending the particular estate, but he is under no duty to do so, as a rule. Lansden v. Bone, 90 Ala. 446, 8 So. 65; Dallas Compress Co. v. Smith, 190 Ala. 423, 67 So. 289; Winters v. Powell, 180 Ala. 425, 61 So. 96; Huey v. Brock, 207 Ala. 175, 92 So. 904; St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 108 So. 858; Hatter v. Quina, 216 Ala. 225, 113 So. 47; Jenkins v. Woodward Iron Co., 194 Ala. 371, 69 So. 646; Prestwood v. Horn, 195 Ala. 450, 70 So. 134. But under some circumstances he must do so to escape a charge of laches. Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73; Winters v. Powell, supra; Dallas Compress Co. v. Smith, supra; Lewis v. Belk, 219 Ala. 343, 122 So. 413; Herren v. Beck, 231 Ala. 328, 164 So. 904. But, when complainant does not seek to obtain the benefit of a statutory right (section 9905, Code) in order to have equity to remove a cloud or quiet the title, he must set forth and describe some instrument which on its face appears to convey a title superior to that of complainant, but it does not so in fact by virtue of some circumstance which does not appear on the instrument or in the proceedings necessary to the use of it in evidence, but which circumstance must be otherwise shown by the evidence. King v. Artman, 225 Ala. 569, 144 So. 442; Herren v. Beck, supra. The statute (Code 1923, § 9905 et seq.) by which a court of chancery may quiet title without removing some specific cloud was an enlargement of the jurisdiction of that court (Gill v. More, 200 Ala. 511, 517 [15], 76 So. 453; Bank of Henry v. Elkins, 165 Ala. 628, 51 So. 821; Cooper v. W. P. Brown & Sons Lumber Co., 214 Ala. 400, 108 So. 20), and has never existed in Alabama, except as so conferred. To sustain appellant’s contention there would be no need for it. The bill does not allege that any of the conveyances purport to include the reversionary interests of complainant, and that evidence aliunde is necessary to show that such title did not pass. There is nothing in the bill to disclose that the deeds are not limited to the life of David Teal. The mere fact that respondent claims such unlimited right is not sufficient, except under the statute (sections 9905, 9912, Code), to invoke the aid of the chancery court. There must be shown to exist a specific document which on its face casts such a cloud, and not void by its recitals or such evidence as must be used in order for it to be admissible. The bill is not sufficient under either of the statutory proceedings named above, and no such contention is made, and no effort is made to invoke the benefits of the Act of September 7, 1935 (Gen.Acts 1935, p. 777), and we do not wish to reverse a decree on the basis of a principle whose application is not sought. The decree of the court shows that the demurrer was sustained because the bill did not contain the necessary allegations, to which we have referred, and it is affirmed. Affirmed. ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.