Torrent Fire Engine Co. No. 5 v. City of Mobile , 101 Ala. 559 ( 1893 )

HARALSON, J.

The bill in this case is filed in a double aspect: First, on the theory, and on allegations to support it, that the city of Mobile conveyed to complainant the lot of land referred to in the bill, and that the deed conveying the same was not recorded, but was, after the same had been duly executed and delivered, in some manner unknown to complainant, lost or destroyed; and on this aspect of the case, complainant seeks relief on the ground, that the recorded deed of the city from its grantor, executed in the year 1849, is a cloud on complainant's title, which interferes with its making sale of said lot, which cloud, it seeks to have removed by having its title to the property established and quieted and the property decreed to belong to complainant. Second, on.the theory, that complainant has the legal title to the property by adverse possession, having, as alleged, been in the exclusive, open, continued, notorious and undisturbed possession and occupation of said property, using and claiming the same openly, notoriously, continuously and adversely against all persons, from 1850, the date of its alleged deed from the city, until the present time, on which ground it seeks relief. The relief sought in each alternative aspect of the case is the same, in that, in each, complainant seeks to have its title established and quieted, and the title vested in the city, by virtue of its deed to the property from its grantor, divested, and said deed removed as a cloud on complainant’s title.

1. There can be no question of the ‘ authority of a court of chancery to re-establish a deed which has been lost or destroyed by accident; but it seems to be well settled, that the mere loss of a deed is not always ground for coming into a court of equity for relief on account of such loss or destruction, for, if there is no more than that in the case, a court of law may afford just relief ; since it will admit evidence of the loss and contents of a conveyance, just as a court of equity will do. So, to enable one to come into equity for relief in case of a lost deed, he must show that there is no remedy at law which is adequate and adapted to the circumstances of his case. "The bill,” says Story, "must always ]ay some ground, besides the mere loss, to justify a prayer for relief, as that the loss obstructs the rights of the plaintiff at law, or leaves him exposed to undue perils in the future assertion,” and it might have been added, enjoyment, "of such rights.” — 1 Story Eq. Jur., § 84; Lancy_ v. Randlett, 80 Me. 169; Donaldson v. Williams, 50 Mo. 407; Griffin v. Fries, 2 So. Rep. (Fla.) 266; Cummings v. Coe, 10 Cal. 29.

The bill in this case was not sworn to, and it fails to show how, when or by whom the deed was lost. It contains no description of the contents of the deed, the title or interest conveyed by it, nor the consideration X>aid, and by whom paid. It merely states, “that the legal title to said property was in fact conveyed to it by said city, and that the deed conveying the same was not recorded, and was, after the same was duly executed and delivered, in some manner unknown to complainant, lost or destroyed ;” and that complainant caused said lot to be purchased and paid for. It, therefore, presents insufficient grounds for relief on this phase of the case, and the grounds of demurrer interposed, questioning relief based on this theory, were properly sustained. — 1 Story. Eq. Jur., §§ 82, 88; Hoddy v. Hoard, 12 Ind. 474, s. o. 54 Am. Dec 4- 6; Cooper’s Eq. Pl., 125, 126.

2. Of the second alternative, on which the bill seeks to proceed, it may be said, that “A court of equity will not interpose to prevent or remove a cloud which can only be shown to be prima facie a good title, by leaving the plaintiff’s title entirely out of view. It is always assumed, when the court interferes, that the title of the party complaining is affected by a hostile title, apparently good, but really defective and inequitable by something not appearing on its face.” — Rea v. Long street, 54 Ala. 294; Lytle v. Sandefur, 93 Ala. 399, 9 So. Rep. 260. The test, as we have heretofore laid it down, is : ‘ ‘Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist. If the proof would be unnecessary, no shade would be cast by the presence of the deed.” In this case, if complainant were sued by the city for this land in an action of ejectment, founded on the deed from its grantor, it, complainant, would necessarily have to introduce oral proof of its adverse possession to defeat a recovery.

We have accordingly held, that when adverse possession is relied on by a complainant, as a ground for the removal of a cloud on his title, the right of necessity must be effectuated by extraneous evidence, and equity may always be invoked, in the absence of legal remedies, to quiet a title thus resting in parol. The grounds of demurrer which question the insufficiency of the bill, to remove a cloud on complainant’s title, should have been overruled, and the bill retained as one for that purpose. — Echols v. Hubbard, 90 Ala. 309, 319, 7 So. Rep. 817; Marston v. Rowe, 39 Ala. 722; Arrington v. Liscom, 34 Cal. 365; Moody v. Holcomb, 26 Texas 714.

3 It is objected, on demurrer, that complainant has delayed too long in filing this bill, and is guilty of such laches as bar its right of relief. The city has no right founded on its deed, which would enable it to maintain or defeat a suit for the land, as against complainant’s plea and proof of adverse possession as set up in the bill. Whom then did the alleged laches of complainant injure, and who has any right to complain on that score? If any rights have been lost by laches, it has been by the city, in acquiescing so long in complainant’s claim. One who has acquired title by adverse holding, can not be said to be guilty of laches in not bringing a suit to remove, as a cloud, the title of another, who disputes his title by adverse possession. Long delay on the part of him, who might have dispossessed the adverse holder by suit begun in time, is the very basis of the title of the latter. The lapse of time, which the law allows as a foundation of the title by adverse possession, can not be made the instrument or means for impairing or destroying one’s rights and privileges growing out of that title.

4. The bill was not subject to demurrer on the ground that it does not aver that the complainant corporation had the power, under its charter to acquire and hold land. — Boulware v. Davis, 90 Ala. 211, 8 So. Rep. 84; Ala. Gold. Life Ins. Co v. Cen. Ag. & M. Asso., 54 Ala. 73.

Reversed and remanded.