Hays v. Bouchelle

DOWDELL, J.

The appeal in this case is prosecuted from the decree of the chancellor, overruling the defendant’s demurrer to the complainant’s bill. The purpose of the bill is to establish the boundary of the land in question, which the bill alleges has been obliterated and become confused. In an elaborate note by Mr. Freeman to the case of Stuart’s Heirs v. Coalter, reported in 15 Am. Dec. 745 , where many cases bearing on the subject are cited, the equitable doctrine in regard to the confusion of boundaries has been ably reviewed and in a most exhaustive manner, and from this review of the authorities the doctrine may be well stated as follows: The jurisdiction of chancery to establish disputed boundaries of land is ancient and well-defined; but it is not an original or independent jurisdiction and “it is accordingly settled, as laid down in the principal case, that a court of chancery will not undertake to settle obscured or confused boundaries of land ilnless some equity is superinduced by the act of the parties or of those through whom they claim.” See authorities cited in note on page 746 of the above case.

According to the averments of the bill in the case at bar, the respondent, being the owner of sections 20 and *215 21, which she had. owned and been in possession of for 30 years, sold, and conveyed section 20 to the complainant, a copy of which deed is attached as an exhibit to the bill. By this deed, in the description of the land convoyed, no boundaries are given, but the land is merely described as being “all of section 20” in a certain township and range in Greene county, Ala. The bill avers that during the time that said two sections of lan-d belonged to the respondent, or those under whom she derived her title, the corners and boundary line between said sections were lost, obliterated, and destroyed; that such loss, obliteration, or destruction of said corners and boundaries were caused and allowed by the design, act or negligence of respondent, or of those under whom she claimed said lands; that said corners and boundaries were lost and obliterated at the date on which respondent sold and conveyed said land to complainant, but that the complainant was then ignorant of this fact. The bill further avers that the respondent has been, since the sale hv her of said section 20 to complainant, the owner of said section 21, and is still the owner thereof; that the respondent did not at the date of said sale point out to complainant the corners and boundaries of said land sold him, and has not since that date done so, although complainant has requested her so to do. The bill further shows, by its averments, that the complainant employed the county surveyor of Greene county for the purpose of locating and ascertaining the boundary line between section 20 and 21, hut 'was prohibited by the respondent, through her agents, by threats of violence, from ascertaining and locating the corners and boundary line between said sections 20 and 21.

It was undoubtedly the duty of the respondent to have put the complainant in possession of the land, which she had sold and conveyed to him, and likewise a duty to have pointed out the boundary line of the land so conveyed, or at least to have permitted her grantee by a proper survey of the land so conveyed to ascertain the correct boundary. We are clearly of the'opinion that, if the allegations of the bill are true as to the acts and *216 conduct of tlie respondent, when taken in connection with the averments as to the obliteration and confusion of the boundary line, then the equity of the bill under the authorities is put beyond all question, and the case is one .that calls for the interposition of a court of chancery. The acts and conduct of the respondent, charged in the bill, in equity amount to a fraud upon the rights of the complainant, and is such an equity, superinduced by the act of the party, as gives the court jurisdiction under the authorities above referred to. We think the doctrine laid down in our own case of Ashurst v. McKenzie, 92 Ala. 484 , 9 South. 262 , and Guice v. Barr, 130 Ala. 570 , 30 South. 563 , are authorities in support of the complainant’s bill. Our conclusion is that the chancellor properly overruled the demurrer, and his decree will be here affirmed.

Affirmed.

Weakley, O. J., and Haralson and Denson, JJ., concur.