Belcher v. Scruggs

TYSON, J. The bill in this cause was filed by a number of complainants as heirs at law of one Thomas Graham, deceased, who died more than ten years ago. The purpose of the bill is to cancel several deeds as a cloud upon the title of the complainants to a certain tract of land described in the bill and in the deeds. There is no averment that the complainants were in possession of the land prior to and at the time of the filing of the bill. So far as its allegations show, they have a complete and adequate remedy at law. Without this averment, it is wholly without equity, there being no special equity alleged showing some obstacle or impediment) which would prevent or embarras the assertion of their rights at law. — Thorington v. City Council of Montgomery, 82 Ala. 591; 3 Brick. Dig. 358, § 375. It is true that the evidence shows that after the complainants had employed counsel to bring this suit- they were advised that in order to maitain it, they must be in actual possession of the lands, and in pursuance to that advice five of the male complainants, and Clint Garrett, who resided in the neighborhood of the tract, went upon it (the tract being unimproved and untenanted) and cleared up about one acre of 'an old field, built a fence around it out of some old rails found upon the land, plowed it, planted it in corn and peas and abandoned it. The inference to be drawn is that it was done by them in one day. It is shown that this is all they ever did toward taking possession. They did not cultivate the crop after planting it, nor is it shown that they otherwise did any act indicating an intention to retain any control over or possession of the lands. This sole act done by them upon the lands was a short time before the filing of this bill and for the single purpose of bringing this suit. We do not think it shows such possession by them as is required by courts of equity to [341] entertain bills of this character. Bona fieles should always characterize the conduct and acts of those who invoke the jurisdiction of a court of conscience for relief. So then, the case is one where the allegations of the bill are defective and had it been amended so as to cure its defects, the evidence was wholly insufficient to support them. But had the evidence shown that the complainants were in the actual possession of the land when the bill was filed, this wo.uld have availed them nothing, as the hill contained no such averment. Proof without allegation is as ineffectual to found relief upon as are allegations without proof. — Cameron v. Abbott, 30 Ala. 416; Copeland v. Kehoe, 57 Ala. 246; Roa v. Longstreet, 54 Ala. 291. The decree dismissing the bill is affirmed.