178 So. 40 (Ala. 1937), 4 Div. 976, Dunn v. Ponceler

CourtSupreme Court of Alabama
Writing for the CourtKNIGHT, Justice.
JudgeANDERSON, C.J., and THOMAS and BROWN, JJ., concur.
Citation235 Ala. 269,178 So. 40
Date16 December 1937
Docket Number4 Div. 976
PartiesDUNN v. PONCELER et al.

Page 40

178 So. 40 (Ala. 1937)

235 Ala. 269

DUNN

v.

PONCELER et al.

4 Div. 976

Supreme Court of Alabama

December 16, 1937

Rehearing Denied Jan. 20, 1938

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Suit in equity by Ella P. Pruett Ponceler and another against Maude Dunn. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

Page 41

Lange, Simpson & Brantley, of Birmingham, and Winn & Winn, of Clayton, for appellant.

Francis H. Inge, of Mobile, and Rushton, Crenshaw & Rushton, of Montgomery, for appellees.

KNIGHT, Justice.

Bill in equity by Mrs. Ella P. Pruett Ponceler, and another, to obtain a decree of the court adjudging certain sales of lands of complainants, made under executions against them, which were issued upon a judgment of the circuit court of Jefferson county, Ala., to be "void and of no effect," and to have the deeds executed to the purchaser canceled as clouds upon title of complainants.

In the bill as amended the complainants offer to pay the judgment in full, the interest thereon, and all costs. The purchaser, in each case, was the plaintiff in the judgment.

It appears from the bill that Maude Dunn, the respondent, recovered a judgment in the circuit court of Jefferson county on the 9th day of December, 1931, for the sum of $2,948.15, and that upon

Page 42

this judgment the plaintiff procured a writ of execution to be issued and placed in the hands of the sheriff of Barbour county, Ala., and that, in execution of said execution, the said sheriff levied upon as the property of the judgment debtors, two pieces of real estate, situated in Barbour county; one piece being locally known as the "Browder Pruett Pecan Grove" containing 100 acres, more or less; and the second piece of property was a certain described residence and lot, on Eufaula street, in the town of Clayton, Ala. All of which property the sheriff of Barbour county sold under said execution and levy on June 20, 1932, and at the sale the respondent, plaintiff in the judgment, became the purchaser. The 100-acre tract was sold to respondent for $100, and the residence property was sold to her for the sum of $10.

The bill avers that 100-acre tract was "planted in grafted pecan trees, between fifteen and twenty years of age, and that this tract was worth not less than $6,000.00" on the date of the sale, and that the annual income from said Pecan Grove for the last few years has been "between one and three thousand dollars; and that the said residence lot was worth not less than $1500.00."

That after the sale of the above properties, the respondent Dunn procured an alias writ of execution to be issued upon said judgment, and placed in the hands of the sheriff of Barbour county, and that under this execution the said sheriff levied upon and sold the following properties of the complainants, located in said county, viz.: Parcel C, a plantation containing 577 acres; Parcel D, a house and lot (in negro quarter east of depot) in the said town of Clayton, Ala.; Parcel E, a certain tract of land with a dwelling on it, in the town of Clayton, Ala.; and Parcel F, a vacant lot in the town of Clayton, fully described. At this sale, all of said property was bought by the respondent, plaintiff in execution, and for the following amounts: For the plantation, 577 acres, the price paid was $75; for the Parcel D, $25; for Parcel E, $25; and for Parcel F, $15. Deeds were duly executed to the purchaser by the sheriff. The deed under the first-mentioned sale was executed to the purchaser on June 20, 1932 (date of sale), and recorded on July 2, 1932. Under the second purchase, deed was executed on August 1 (date of sale) and filed for record on August 4, 1932.

It is averred in the bill that the plantation containing 577 acres--Parcel C--"was at the date of the sale and still is" worth not less than $10 per acre; that Parcel D was and still is worth $500; and that Parcel E was then and still is worth not less than $200.

The bill avers that the amounts at which said properties--the parcels sold on June 20, 1932, as well as the parcels sold on August 1, 1932--were bid in and bought by respondent "were so inadequate as to be glaring and gross so as to shock the understanding and conscience of an honest and just man."

It is further made to appear from the averments of the bill that respondent, after her purchase, the exact date is not disclosed, entered upon and took possession of all of said property, except the residence on Eufaula street in the city of Clayton, Ala., and has had possession of the properties for about four years, and during which time she has collected rents and incomes therefrom amounting reasonably to $1,000 per year.

It further appears from the bill that the complainants on June 9, 1933, as executrices and trustees under the will of O.B. Pruett, deceased, instituted an action of ejectment in the circuit court of Barbour county, Ala., against the respondent seeking to recover said property. And here we quote from the bill: "Oratrices were advised and believed that under terms of the will of O.B. Pruett, deceased, under whom complainants claim title thereto, said lands were not subject to levy and execution under said judgment obtained against them by the respondent, Maude Dunn, in the Circuit Court of Jefferson County, Alabama, and such contention on the part of these complainants was upheld by the said Circuit Court of Barbour County, Alabama, but on appeal to the Supreme Court of Alabama, that Court, on, to-wit, the 9th day of May, 1935 [230 Ala. 375, 161 So. 450], rendered a judgment reversing the said judgment of the Circuit Court of Barbour County, Alabama, and in an opinion accompanying said judgment, did hold that said land was subject to the lien of the judgment of said Maude Dunn and was liable to be sold in satisfaction thereof. As stated above, oratrices were advised and believed that said property was not subject to sale under said judgment of respondent, and acting upon said advice and belief, did

Page 43

not take any steps to redeem said property from said sheriff's sale as permitted by the statutes of Alabama in such cases made and provided. Oratrices further aver that the said respondent, Maude Dunn, is still in the possession of said property and that the rights of no innocent purchaser or subsequent lienors are involved in this suit."

It is further averred that by reason of the purchase of complainants' property, at the grossly inadequate aggregate price of $250, the respondent has only credited said judgment with that amount of money, and that she is now threatening to have other executions issued on said judgment in an effort to reach other properties of complainants; and that this purpose will be accomplished unless the respondent is restrained by the orders of this court. Complainants pray for temporary and permanent injunction, with offer to pay the judgment in full, with interest to date, and cost, upon respondent's reconveying the properties to the complainants. And complainants make the further offer: "And the complainants do now specifically offer to pay (and they are ready, able and willing so to do), into this court or the Registry thereof, there to abide the judgment or the further orders either interlocutory or final, of this Honorable Court, a sum equal to the amount of respondent's judgment, with lawful interest to the date of such payment as a condition precedent to the granting of a temporary injunction as hereinafter prayed for or as a condition precedent to any other relief herein sought; the complainants hereby repeating and reiterating their desire to do equity by paying said judgment, with interest and costs, desiring only to be protected against a double satisfaction thereof."

To the bill as originally filed, and to the bill as amended, the respondent filed numerous grounds of demurrer, taking the points: (1) That the circuit court of Barbour county (in equity) was without jurisdiction to entertain the bill; (2) res adjudicata; (3) laches; (4) statute of limitations; and (5) multifariousness.

The court overruled the respondent's demurrers, and from this decree the present appeal is prosecuted.

We are not impressed that there is any merit in those grounds of demurrer which take the point that, inasmuch as the judgment was rendered by the circuit court of Jefferson county, and the executions under which the sales were made were issued out of that court and were returnable to that court, the circuit court of Jefferson county had exclusive jurisdiction in the premises.

Appellant's argument would unquestionably be sound, if the sole purpose of this suit was to have the sales vacated on account of the wrongs charged, and no other relief was necessary to protect the complainants in the full enjoyment of their property, without danger of further embarrassment, due to the presence upon the records of the sheriff's deeds, or due to the possession of such deeds by the respondent appellant. We say this, because all "courts have full power over their officers making execution sales, and whenever satisfied that a sale made under legal process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside." But the court which rendered this judgment was sitting as a law court, without equity powers, and this court could not, after entering a proper order...

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29 practice notes
  • 3 So.2d 310 (Ala. 1941), 8 Div. 86, Dean v. Lusk
    • United States
    • Supreme Court of Alabama
    • June 5, 1941
    ...a direct attack upon the sale where the plaintiff in execution is the purchaser and the land is sold in mass. In Dunn v. Ponceler et al., 235 Ala. 269, 270, 178 So. 40, it was declared: "An equity court will entertain bill to vacate execution sale of property under judicial process and......
  • 181 So. 782 (Ala. 1938), 6 Div. 240, Shepherd v. Kendrick
    • United States
    • Supreme Court of Alabama
    • May 12, 1938
    ...sufficient excuse is shown for the long delay. The question of laches was very fully discussed in our recent case of Dunn v. Ponceler, 178 So. 40, and needs no reiteration here. As observed in that authority (page 46), "What will be regarded as a sufficient excuse depends upon the circ......
  • AGO 2000-129.
    • United States
    • Attorney General Opinions Alabama
    • April 20, 2000
    ...to the spouses and the marriage." Seeid., cmt. j; id., reporter's note to cmts. j-k (collecting cases); see also Osoinach, 235 Ala. at 269, 180 So. at 581 (holding that marriage of two Alabama residents who went to Georgia to obtain marriage that violated Alabama's incest laws was void......
  • 25 So.2d 26 (Ala. 1945), 4 Div. 388, Pittman v. Pittman
    • United States
    • Supreme Court of Alabama
    • December 20, 1945
    ...v. American Trust & Savings Bank, 216 Ala. 602, 114 So. 220; Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782; Dunn v. Ponceler, 235 Ala. 269, 178 So. 40; Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. Thus, laches will not preclude equitable relief unless he who seeks it has knowle......
  • Request a trial to view additional results
27 cases
  • 3 So.2d 310 (Ala. 1941), 8 Div. 86, Dean v. Lusk
    • United States
    • Supreme Court of Alabama
    • June 5, 1941
    ...a direct attack upon the sale where the plaintiff in execution is the purchaser and the land is sold in mass. In Dunn v. Ponceler et al., 235 Ala. 269, 270, 178 So. 40, it was declared: "An equity court will entertain bill to vacate execution sale of property under judicial process and......
  • 181 So. 782 (Ala. 1938), 6 Div. 240, Shepherd v. Kendrick
    • United States
    • Supreme Court of Alabama
    • May 12, 1938
    ...sufficient excuse is shown for the long delay. The question of laches was very fully discussed in our recent case of Dunn v. Ponceler, 178 So. 40, and needs no reiteration here. As observed in that authority (page 46), "What will be regarded as a sufficient excuse depends upon the circ......
  • 25 So.2d 26 (Ala. 1945), 4 Div. 388, Pittman v. Pittman
    • United States
    • Supreme Court of Alabama
    • December 20, 1945
    ...v. American Trust & Savings Bank, 216 Ala. 602, 114 So. 220; Shepherd v. Kendrick, 236 Ala. 289, 181 So. 782; Dunn v. Ponceler, 235 Ala. 269, 178 So. 40; Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. Thus, laches will not preclude equitable relief unless he who seeks it has knowle......
  • 38 So.3d 731 (Ala.Civ.App. 2008), 2060807, Mills v. Dailey
    • United States
    • Alabama Court of Civil Appeals
    • July 3, 2008
    ...asserting a right; an implied waiver arising from knowledge of existing conditions and an acquiescence in them.’ " Dunn v. Ponceler, 235 Ala. 269, 276, 178 So. 40, 46 (1937) (quoting 21 Corpus Juris, pp. 210, 211). For example, this court has " Laches is a doctrine of equity. In s......
  • Request a trial to view additional results

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