Inge v. Demouy , 122 Ala. 169 ( 1898 )

DOWDELL, J.

— The bill in this case was filed under sections 809 and 810 of the Code, “To compel the determination of claims to lands and to quiet title.”

1. We notice that the bill in its averments closely follows the statute, and contains all that is required to be averred. — Adler v. Sullivan, 115 Ala. 582; Cheney v. Nathan, 110 Ala. 254; Loeb v. Wolff, 116 Ala. 273; Parker v. Boutwell, 119 Ala. 297.

The only two assignments of error insisted on by appellants in their brief and argument, are'the overruling ihe two grounds of demurrer to the bill, viz.: “Because it [the bill] alleges that the defendants claim an interest or incumbrance upon said lands, but fails to offer to do equity by paying and satisfying any claim or incumbrance Avliich may be decreed to be a valid and subsisting claim;” and “Because the bill of complaint fails to describe the lands with certainty.” The statute does not require, nor Vas it necessary for, the complainant in his bill to offer to do equity by satisfying any claim or incumbrance which defendants may have had on the lands. This alleged requirement Avas outside the purview of the statute, the purpose of which is, — Avithout denying the authority of the court taking jurisdiction under such a statutory bill, to go on and settle the claims of the parties in respect to the land, — “simply to fix the status of the land in respect to OAvnersliip, (and) to re-establish by the decree muniments of title to it.” — Cheney v. Nathan, supra; Friedman v. Shamblin, 117 Ala. 454; 23 So. Rep. 821.

2. The ground of demurrer in respect to the description of the land, as given in the bill, Avas general as to the three separate lots therein referred to and described. The description of the first lot mentioned is, “That certain lot on the south side of Dauphin street, between Con ception and Joachim streets, having a front twenty-eight feet and seven inches on Dauphin street, by a depth of one hundred and ten feet, more or less, being next east of Sangrouber’s.” The decree in a case of the kind, as we have heretofore said, is not intended to be presently executed, but is to stand for all time as a muniment of title. This description is not void for uncertainty, in a bill vrhere the decree is to be presently executed. It is one of those uncertain descriptions, in a case of the character, which may be aided by parol, and comes within the maxim, aId cerium est, quod cerium reddi.” Where Sangrouber’s lot is, could now be easily ascertained by parol, and the description given would enable a surveyor, at the present time, to locate it, and thereby locate the lot referred to in the bill. — Homan v. Stewart, 103 Ala. 650; Griffin v. Hall, 115 Ala. 482. But Sangrouber’s possession and ownership of his lot are not necessarily continuous, and such a description as the one given is, therefore, necessarily ephemeral. The description, in order to meet the requirements of the statute, should have been of a character sufficiently certain to identify the lot always hereafter, in its muniments of title. The landmarks employed, we apprehend, fall short of that certain, continuous identification of the property which is necessary. The descriptions of the other two lots seem to be sufficiently certain. They are enduring. — Ward v. Janney, 104 Ala. 122.

But, as stated, the demurrer went, to the whole bill, in which two lots were, and the third was not, well described, and was, therefore, properly overruled.— George v. C. R. R. & B. Co., 101 Ala. 607; Durling v. Hammar, 20 N. J. Eq. 220; 1 Daniel Ch. Pl. & Pr., § 583; 6 Ency. Pl. & Pr. 418; Story’s Eq. Pl., § § 443, 693.

Affimed.

Haralson, J., not sitting.