Clark v. Whitfield

• Decision Date: 23 April 1925
• Docket Number: 2 Div. 869
• Citation: 213 Ala. 441,105 So. 200
• Parties: CLARK et al. v. WHITFIELD et al.
• Court: Alabama Supreme Court

105 So. 200

213 Ala. 441

CLARK et al. v. WHITFIELD et al.

2 Div. 869

Supreme Court of Alabama

April 23, 1925

Rehearing Denied June 25, 1925

Appeal from Circuit Court, Bibb County; S.F. Hobbs, Judge.

Bill in equity by Sallie W. Whitfield and others against Julia F Clark and others. Decree for complainants, and respondents appeal. Reversed and remanded.

Jerome T. Fuller, of Centreville, and Stokely, Scrivner, Dominick &amp Smith, of Birmingham, for appellants.

Percy Benners & Burr, of Birmingham, for appellees.

THOMAS J.

The bill as amended is for sale of lands for division among joint owners.

As a general rule, mining property, from its unusual nature, is not susceptible of division by metes and bounds if the veins, seams, or bodies of ore or coal are averred to be unevenly distributed. For the same reason the values are, more or less, conjectural until proved by sufficiently extended development and tests. And a sale of such lands for division was held necessary and approved in Sheffield, C. & I. Co. v. Ala. F. & I. Co., 185 Ala. 50, 64 So. 67; Trucks v. Sessions, 189 Ala. 149, 66 So. 79; Ezzell v. Wilson, 200 Ala. 612, 76 So. 970; Musgrove v. Aldridge, 205 Ala. 189, 87 So. 803. For general authorities see L.R.A.1916D, at page 1157 et seq.

We may say that the rulings on questions of fact were within the rule of Hackett v. Cash, 196 Ala. 403, 72 So. 52. Extended, as it is, to chancery cases, where the evidence is heard by the judge rendering the decree (Hodge v. Joy, 207 Ala. 198, 92 So. 171), in open court and is ore tenus. Andrews v. Grey, 199 Ala. 152, 74 So. 62; Fitzpatrick v. Stringer, 200 Ala. 574, 76 So. 932; Caples v. Young, 206 Ala. 282, 89 So. 460; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A.1918D, 858. The ruling on demurrer to the bill as amended is assigned and urged as error.

The general averment that the lands described could not be equitably divided without a sale was an averment of fact and sufficient in the language of the statute. Code 1907, §§ 5222, 5231 (Code 1923, §§ 9322, 9331); Acts 1923, p. 659; Wood v. Barnett, 208 Ala. 295, 94 So. 338; Chandler v. Home Loan Co., 211 Ala. 80, 99 So. 723; Smith v. Witcher, 180 Ala. 102, 60 So. 391. And for the purpose of the bill (if unembarrassed by estoppel or res judicata), the general averments contained in the amendment would be sufficient. Is it different when the amendment is considered by way of replication or avoidance?

Under our statute and practice in courts of chancery no replication is necessary to a plea and answer (Code 1907, § 3122) but when a plea or answer is filed, that is proper in allegation, matter by way of replication and in avoidance thereof may be properly introduced by way of an amendment to the bill. Scharfenburg v. The Town of New Decatur, 155 Ala. 651, 47 So. 95; Smith v. Vaughan, 78 Ala. 201; Lanier v. Hill, 30 Ala. 111. The effect of the statute as amended was the subject of discussion in Wood v. Barnett, 208 Ala. 295, 94 So. 338, Sandlin v. Anders, 210 Ala. 396, 98 So. 299, and Stokes v. Stokes (Ala.Sup.) 101 So. 885, and it was declared that the enlarged jurisdiction of a court of equity, as to such matter, was to determine all questions of title, to apportion incumbrances and adjust claims and equities between the holders thereof and those between the several cotenants or claimants.

Thus under the amended statute the filing of proper pleading put in issue the respective claims of the parties at interest before the court, for it presupposes an accounting (and determination as to the subject-matter) to be made to incumbrancers and lien-holders, and a determination of the equities and claims of joint owners and claimants. It bears analogy to a bill for accounting generally. Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186.

Was the bill as amended under the amended statutes (Acts Sp.Sess.1920, p. 164; Acts Sp.Sess.1909, p. 124) and as construed in Sandlin v. Anders, 210 Ala. 396, 98 So. 299, Wood v. Barnett, 208 Ala. 295, 94 So. 338, and Stokes v. Stokes (Ala.Sup.) 101 So. 885, sufficient in averment, when challenged by demurrer, carrying the amendment, as it did, of matters by way of replication and avoidance of the answer? That is to say, the bill as amended, among other things sought to present a changed status quo to that presented, and theretofore decided adversely to the complainants in Finch v. Smith, 146 Ala. 644, 41 So. 819, 9 Ann.Cas. 1026. The matter set up in the answer was in the nature of facts peculiarly within equitable cognizance and estoppel by judgment. The reply is averred by way of amendment to the bill. It was to the effect that since filing the petition referred to in paragraph 4 of respondents' answer the "several facts have changed or new facts have occurred," viz.: That parties to the original suit have died, creating life estates and remainders as small as one eighty-fourth interest in said land; seams of coal on said land since then have been altogether or partially mined out, and thereby changed the value of different portions of said land as contrasted with other portions; slopes and workways have been made, thereby making inequitable in value the different portions of the land; faults have been discovered in certain portions, "making partition more difficult and unfair"; parties not then born have succeeded by inheritance to interests in the land; and "many conditions by reason of railroad transportation, excavation of coal on certain seams, location of slopes, airways, headings, and entries, and location of faults have all changed conditions to such an extent as to present changes and different facts from those that existed in 1895 and 1896."

The sufficiency of the foregoing amendments, as showing a changed status, is challenged, and it is insisted that they are mere conclusions of the pleader; that the "complainants do not offer to do equity in the premises"; that "the fact that the value of the parcels, into which the land described in the bill will have to be divided or partitioned in kind, according to the ownership of an undivided interest therein, as set forth in the bill, would be small in comparison with their respective proportionate parts of the value taken as a whole would not constitute such an inability to divide or partition the said land in kind as to authorize this court to order a sale," and that "the lands described in the complaint sought to be sold for division among the joint owners thereof are not contiguous tracts, and for aught that appears in the bill of complaint some of the lands described therein can be divided in kind for that the lands described in the bill of complaint are not contiguous."

The pleading in equity, as at law, must be construed most strongly against the pleader (Strickland v. Gay, Hardie & Co., 104 Ala. 375, 16 So. 77; Lewis v. Mohr, 97 Ala. 366, 11 So. 765; Randolph v. Bradford, 204 Ala. 378, 86 So. 39; Hines v. Seibels, 204 Ala. 384, 86 So. 43), and this applies to the amended bill added by way of replication and avoidance to the estoppel and res judicata by decree of the probate court set up in the answer. That is, "the equity of a bill will be considered from the facts as the plaintiffs present them (Smith v. Teague, 119 Ala. 385, 24 So. 4), and no advantage *** can be claimed from vague and indefinite allegations in his [[complainant's] bill (Underhill v. Mobile, etc., Ins. Co., 67 Ala. 45)." Randolph v. Bradford, supra. And the bill as amended must set forth the facts authorizing the relief prayed, notwithstanding the former adjudication of the right of sale vel non for division. Scholze v. Steiner, 100 Ala. 148, 152, 14 So. 552; Cameron v. Abbott, 30 Ala. 416; Cullman Property Co. v. Hitt Lumber Co., 201 Ala. 150, 77 So. 574.

Since the amendment to the original bill is by way of replication to the answer, the two pleadings will be considered together in determining the sufficiency of demurrer addressed to the bill as amended. The averment of the recent discovery of faults in the seams of coal was of continuing natural conditions and facts which existed at the time of the former adjudication; the slopes, workways, entries, etc., have been constructed or maintained by one of the complainants as lessee; the death of some of the original parties leaving life estates and remainders changed the adjudged status of the subject-matter, though in privity of blood or estate with the original parties to the former suit. The changed conditions, by reason of railroad transportation and excavation of coal on certain seams, considered as matters of replication and avoidance, were most general. The specific maps in evidence did not aid the pleading in question.

The general rule of res judicata is that a judgment of a court of competent jurisdiction, rendered on its merits, is final and conclusive of the matter in controversy and what ought to have been litigated in the suit as between the parties to the litigation. Crausby v. Crausby, 164 Ala. 471, 51 So. 529; Mayer v. Kornegay, 152 Ala. 650, 44 So. 839; Schillinger v. Leary, 201 Ala. 256, 77 So. 846; Steele v. Crute, 208 Ala. 2, 93 So. 694; Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 93 So. 904; Hines v. Miniard, 208 Ala. 176, 94 So. 302; Redd Bros. v. Todd, 209 Ala. 56, 95 So. 276; Terrell v. Nelson, 199 Ala. 436, 439, 74 So. 929.

It follows that the res judicata is applied to the status at the time of the rendition of former decree or judgment, yet that status is prima facie presumed to continue, until facts are alleged and proved which have brought about a materially changed condition of fact, presenting a different status for adjudication. McCalley v. Robinson's Adm'r, 70 Ala. 432; State ex rel. Craft, Adm'r, v. Williams, 131 Ala. 56, 30 So. 782, 90 Am.St.Rep. 17.

A judgment, to...