Whether the bill be treated as a statutory bill to quiet title, or one invoking the general principles of equity jurisprudence, which affords this remedy to a complainantin possession holding the legal title, it is essential to the equity of the bill that its allegations show that complainant is in possession of the interest; whether it be the mineral or surface rights, the title to which it seeks to clear and quiet. Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262; Jones v. De Graffenreid, 60 Ala. 145; Daniel v. Stewart, 55 Ala. 278; Plant v. Barclay, 56 Ala. 561; 3 Brick.Dig. 358, § 375; Gulf Coal Coke Co. v. Alabama Coal Coke Co., 145 Ala. 228, 40 So. 397, 7 L.R.A., N.S., 712; Code 1940, Tit. 7, § 1110.
Where the complaint asserts and relies on a superior paramount equity, and *Page 99 not the legal title, the rule is different. In such case the title will not support the action of ejectment or the action in the nature thereof, the possession of the land by the complainant is not essential to the equity of the bill. Shipman v. Furniss, 69 Ala. 555, 44 Am.Rep. 528.
While the bill, following the prescription of the statute, alleges, "That the complainant, * * * is the owner of the legal title to all of said above described lands and all mineral thereon and thereunder in his own right; that he is now in the actual and peaceable possession of all of said lands, including all of said mineral; that complainant's title to one-half undivided interest is denied and disputed by the respondent; that said respondent claims to own the same; and that no suit is now pending to enforce or test the validity of his title thereto," it also alleges, "That on the 10th day of February, 1942, complainant made and entered into a written agreement with the General Ore Company, a corporation, under the terms and provisions of which agreement was given or granted an option to mine the mineral in and under said above described land, and purchase the same after being so mined. A copy of said agreement is hereto attached and made a part hereof as fully as though set out herein in detail, * * *, and marked Exhibit G. Complainant avers that on, towit, the 17th day of November, 1942, said General Ore Company duly exercised said option according to the terms and provisions thereof and immediately commenced the mining of said mineral in, on or under said lands as provided for under the terms and provisions of said written agreement," and was at the filing of the bill engaged in said mining operations.
Said agreement, Exhibit "G", shows that complainant and his wife for a valuable consideration granted and conveyed to the General Ore Company on December 20, 1942, "Any and all rights in, under over and upon the lands of first parties to prospect for bauxite and/or other minerals, to dig test pits, drill or dig wells, and to remove bauxite and/or other minerals therefrom as samples for analysis, together with the right of ingress and egress and all other rights necessary or incidental thereto. * * *
"(b) To purchase on the terms hereinafter set forth all the bauxite and/or other minerals in and under said lands. * * *
"5. If the option is exercised by second party to purchase all the minerals therein as provided in paragraph 3 (b), then first parties hereby grant and convey unto second party for the term of five (5) years from the date of the exercise of such option the right to mine and remove all bauxite and/or other minerals from said lands, and second party shall pay therefor the sum of fifty cents (50¢) per long ton, or 2,240 pounds each, dry basis, for all bauxite so mined and removed and ten per cent (10%) of the gross sales price in crude form f. o. b. shipping point for all other minerals mined and removed from said lands, railroad weights excluding moisture to govern in all instances; provided the annual minimum amount payable by second party to first parties shall be the sum of One Hundred Dollars ($100.00), which, however, to the extent that it represents an excess over the amount required to be paid during such year for minerals actually mined and removed shall be a credit against any amounts payable to first parties for any and all minerals mined and removed thereafter from said lands. * * *
"8. In the event second party exercises the option in paragraph 3(b), second party shall have the rights and privileges of ingress and egress across and over said lands; to use such lands as are necessary in the opinion of said second party for the placing of waste and overburden; to use water and timber on the property for mining purposes; to erect buildings and to do all other things incident to or necessary for the mining and removal of bauxite and/or other minerals from said lands; and to wash and dry said bauxite and/or other minerals on said property, if desired."
The agreement is executed by the complainant and his wife as first parties under seal and witnessed by two witnesses.
Notwithstanding the general allegations first above quoted, the subsequent allegations in the bill show that the General Ore Company is in the actual possession of the mineral rights in said lands as the purchaser of such mineral rights. The third ground of demurrer addressed to the bill as originally filed as a whole and as amended is in these words: "For that it appears from the allegations of the bill that complainant is not in peaceable possession of the undivided half interest in the minerals, title to which he seeks to quiet." *Page 100
Construing the averments of the bill most strongly against the pleader, this ground of demurrer was well taken.
The bill as amended shows that at the time it was filed, Smith, who purchased from the respondent Federal Land Bank, executed to the vendor a mortgage for $1200, covering said lands; that said mortgage was assumed by the complainant and his assumption of indebtedness was accepted by the respondent. Thus the complainant became the principal debtor and Smith the surety for the payment of said indebtedness.
There is an absence of averment in the bill that the indebtedness was paid before this bill was filed. We do not think it can be successfully contended that in these circumstances the complainant can maintain a bill to settle and quiet title to lands, the title to which is shown to be in respondent, without first paying said mortgage debt.
Counsel for appellee in the application for rehearing purporting to quote an excerpt from the opinion asserts that its meaning is not understandable. The fault in the application is that counsel does not correctly quote the expression in the opinion, which follows: "Resolving intendments against the complainant, as must be done on demurrer, the transaction between Smith and the complainant was a repurchase, rather than a redemption; hence complainant acquired only such interest as Smith purchased from the defendant and it holds a purchase-money mortgage, assumed by complainant, and an undivided interest in the mineral rights. These allegations cannot be treated as mere surplusage on demurrer."
The bill does not question the regularity of the foreclosure proceeding at which the respondent became the purchaser of all the mortgaged property, and by such purchase it became the holder of the title in fee, determinable by the exercise of the statutory privilege of redemption by the mortgagor. Baker, etc., v. Eliasberg Bros. Mercantile Co., 201 Ala. 591,79 So. 13, 15; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40; Coon v. Henderson, 242 Ala. 144, 5 So.2d 397. It is well settled that while a complete redemption may be accomplished by negotiations between the parties (Long v. King, 233 Ala. 379,171 So. 738), such redemption must be made from the party holding the title, and cannot be made by piece-meal. The process contemplated and required by the statute makes an indivisible entity of the act of redemption where the purchaser at foreclosure sale purchases the entire property. Morrison v. Formby, 191 Ala. 104, 105, 67 So. 668; Hargett v. Franklin County, 212 Ala. 423, 103 So. 40; Duncan v. Hubbard, 234 Ala. 202,174 So. 291.
The respondent having become the holder of the entire title by its purchase at foreclosure sale clearly had a right to sell to Smith any part of the property, and, as between Smith and the respondent, had a right to reserve to itself a one-half interest in the mineral rights; and to effect a complete redemption of the title complainant was compelled to redeem from Smith the interest which he purchased, and from the Federal Land Bank the interest which it reserved. The respondent being the holder of a part of the title [an undivided one-half interest in the mineral rights] was a necessary party to the redemption. Wilkes v. Hood et al.,237 Ala. 72, 185 So. 748. There is an absence of allegation that by the assumption of the mortgage indebtedness given by Smith for the balance of the purchase money, and its acceptance by the respondent bank, the parties contemplated and effected a complete redemption of the entire title. As before stated, the bill does not allege payment of said mortgage.
We adhere to the conclusion that grounds three, eight and nine of the demurrer were well taken and the application for rehearing is overruled.
Application for rehearing overruled.
All the Justices concur.