Alabama Butane Gas Co. v. Tarrant Land Co.

• Decision Date: 18 May 1944
• Docket Number: 6 Div. 227.
• Citation: 18 So.2d 91,245 Ala. 550
• Parties: ALABAMA BUTANE GAS CO. ET AL. v TARRANT LAND CO.
• Court: Alabama Supreme Court

18 So.2d 91

245 Ala. 550

ALABAMA BUTANE GAS CO. ET AL. v TARRANT LAND CO.

6 Div. 227.

Supreme Court of Alabama

May 18, 1944

Horace C. Wilkinson and Joe G. Burnett, both of Birmingham, for appellants.

J K. Brockman and Thos. Seay, both of Birmingham, for appellee.

FOSTER Justice.

This is an appeal from a decree sustaining the demurrer to a cross-bill for want of equity and dismissing it. Counsel for appellee in brief to sustain the ruling declare that the case resolves itself into a question of whether or not the cross-bill seeks any new relief which could not be granted under the original bill and answer thereto. But counsel also cite authorities and argue to the effect that a tenant and one holding under him are estopped to deny the title of his landlord.

The original bill was filed by Tarrant Land Company against Alabama Butane Gas Company, a corporation, American Oil Company, a corporation, Louis Darring and Eva Darring. The substantive features of the bill are set out in the report on former appeal, wherein this Court affirmed the decree overruling demurrer to it. 244 Ala. 638, 15 So.2d 105. The bill sought to have ascertained and paid the amount due complainants as rent on account of a lease of a vacant lot to Charles Darring, then deceased; and to establish and enforce a contractual lien upon certain specified property for the payment of the rent, and for a personal judgment against the various parties, including Eva Darring, on account of their participation with Charles Darring in the use of the premises, as successors and privies in estate with him.

The cross-bill is by Eva Darring as a feature of her answer. It alleges that during the term of the lease to Charles Darring and on January 1, 1940, she entered into a purchase agreement with complainants for said property for $2,000, and made two payments with the balance payable when complainant should make her a deed conveying a merchantable title, as shown by an abstract the seller agreed to furnish her, and delivered the possession of the property to her. That she learned later that complainant did not have the title to the property, but it was owned by the city of Tarrant City, Alabama, subject to a number of claims and encumbrances; that on October 16 1940, she received a deed to the property from Tarrant City and paid off the claims and encumbrances, amounting to $900, not otherwise specified. She also alleges that she owns the premises, and is in the quiet peaceable possession of the same, and no suit is pending to test her claim or title other than the instant proceeding, and that complainant has no right, title or interest in the property. She prays that she be adjudged the sole owner of the property, and that complainant has no right, title or interest in it, and for general relief.

As we have noted the original bill bases complainant's claims on a lease against the lessee and his privies in estate. Pan American Petroleum Corp. v. Parker, 230 Ala. 178, 160 So. 220; Johnson v. Moxley, 216 Ala. 466, 113 So. 656. One of such alleged privies is Eva Darring, the cross-complainant. The original and amended bill do not put in issue the title to the property. The only matter in it to sustain its equity, as held on former appeal, is the alleged contractual lien of the lessor of a vacant lot on certain specified personal property. Eva Darring is not estopped as the tenant of complainant, nor as the tenant's successor, to claim that pending the lease she made a contract of purchase with the lessor, and is holding under that purchase agreement. Hammond v. Blue, 132 Ala. 337, 31 So. 357. By setting up her claim of purchase, and by making statutory allegations to quiet her title, she shows matter proper for a cross-bill. Bell v. Propst, 220 Ala. 641(4), 127 So. 212; Burdett v. Rossiter, 220 Ala. 631, 127 So. 202 (8 and 9); Sloss-S. S. & I. Co. v. Lollar, 170 Ala. 239, 54 So. 272; Smith v. Rhodes, 206 Ala. 460, 90 So. 349.

If Eva Darring made the purchase agreement with complainant as alleged, her status as a licensee or assignee of complainant's lessee was changed to that of vendee of complainant. If she is estopped to make claim in respect to the...