Cameron v. Abbott , 30 Ala. 416 ( 1857 )

WALKEN, J.

The patent to the land in controversy in this case is averred in the bill to have issued to Job Taylor, Daniel Neves, Joseph Bryan, and Thomas J. Abbott. It is clear that, if nothing to the contrary be shown, the patent must be regarded as evidence, alike at law and in equity, of title in those in whose favor it issued. Masters v. Eustis, 3 Porter, 368; Crommelin v. Minter, 9 Ala. 594. Therefore, we must regard the bill as showing a good legal and equitable title, to an undivided one-fourth of the land, in the defendant Abbott, as one of the four tenants in common to whom the patent issued, unless some averment in the bill shows the contrary.

The bill states the purchase by the complainant from Moses Bentley, and the assignment by the latter to him of a bond for titles given by Alfred Johnson, Job Taylor and Daniel Neves; and also a purchase by Alfred Johnson from Job Taylor, with the consent of Daniel Neves, and the execution of bonds for title by Job Taylor to Johnson. The bill avers, also, that Job Taylor and Daniel Neves purchased the land; but it does not state from whom the purchase was made, or that the person from whom the purchase was made had any interest or title to the land or connection with it. If the bill had shown that Job Taylor and Daniel Neves had purchased the land from a Creek reservee, and obtained a deed which was approved by the president, and upon which the patent afterwards issued in the name of the four persons, the equitable title would be in the complainant, and Abbott would be held a trustee for him. But the bill fails to show that the complainant deiived any title or right, either perfect or imperfect, by his purchase, by the omission to show that those under whom he held had any right or title or any kind of interest in the land. There is nothing in the bill, which shows that the inchoate right to public land, which may be acquired before the issue of a patent, was vested either in the complainant, or those under whom he held.

There are two sentences in the bill, upon which the pleader may have relied to give it equity as against Abbott and Bryan. Those two sentences are in the following words : “ Your orator is informed, that said Abbott and Bryan were requested by said Taylor and Neves to have patents issued for said land, and other lands, and that they run their names into those patents, so as to secure their fees. Your orator charges, that said Abbott and Bryan have no claim to said lands, or any portion thereof, or any interest therein, which, in equity and good conscience, can counteract or overreach the complete equity of your orator, coupled with his adverse' actual possession.” The former of those sentences is not an averment, but a mere statement of what the complainant had heard. — Jones v. Cowles, 26 Ala. 612; Read v. Walker, 18 Ala. 323. The latter is not the averment of a fact, but of a conclusion, without the merit of stating the facts upon which the conclusion is predicated.

The demurrer of Abbott was, therefore, properly sustained to the bill, and the complainant’s bill was properly dismissed as to him.

If it be true that the answer states facts, and the testimony proves them, upon which the complainant would be entitled to a decree against Abbott, it will not avail the complainant, because he was entitled to no decree not authorized by the allegations of the bill. All he can claim is, that the bill, so far as it related to Abbott, should have been dismissed without prejudice to his right to file another bill against him. That was the decree in relation to Abbott which should have been rendered by the chancellor ; and as the chancellor dismissed it absolutely as to Abbott, we must reverse the decree in that respect, and render it as above indicated ; and in all other respects the decree of the chancellor is affirmed. The appellant must pay the costs of the appeal.