Adams v. Powell

• Decision Date: 19 May 1932
• Docket Number: 5 Div. 79.
• Citation: 142 So. 537,225 Ala. 300
• Parties: ADAMS v. POWELL ET AL.
• Court: Alabama Supreme Court

142 So. 537

225 Ala. 300

ADAMS v. POWELL ET AL.

5 Div. 79.

Supreme Court of Alabama

May 19, 1932

Rehearing Denied June 23, 1932.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Bill to quiet title by George W. Powell, James W. Powell, John W Powell, and Hannah Bolan, against Maud Adams, and cross-bill by respondent. From a decree for complainants, respondent appeals.

Affirmed.

Jas. W Strother, of Dadeville, for appellant.

Albert Hooton, of Dadeville, for appellees.

FOSTER J.

Complainants filed a statutory bill to quiet the title of land in respect to claims of respondent. Both parties claimed from a common source, to wit, Alice V. Hunt, who before her death conveyed an undivided half interest to her husband, C. B. Hunt. Complainants claim as heirs of Alice V. Hunt, and respondent claims as the sole heir and child of C. B. Hunt. Alice V Hunt left no descendants. Respondent claimed such half interest by virtue of the deed to her father, and in a cross-bill sought a sale for division, and also alleged an error in the description in the deed, and sought its reformation.

Complainants in answer to the cross-bill alleged that when Alice V. Hunt acquired the land she borrowed from C. B. Hunt a part of the purchase price, and gave him a deed to a half interest, and that while they both still lived she repaid him the amount so loaned, but that he never reconveyed it to her, though he thereafter made no claim to it. Complainants sought no relief in this respect.

The evidence shows that, before the institution of this suit, the same complainants filed a suit in equity against the same respondent, alleging that Alice V. Hunt and C. B. Hunt owned said land jointly; that Alice V. Hunt purchased from C. B. Hunt his interest and paid him the purchase price, and they separate, and did not live together, and he put her in possession, but never conveyed to her his interest and sought a specific performance of their alleged parol contract. That cause came to this court. 205 Ala. 91, 87 So. 346. It was held that complainants had not proven such a contract of sale, but that the evidence showed that they may have some other equitable relief which was not specified, and remanded the cause, so as to permit an amendment. An amendment does not appear to have been made. There is an entry on the trial docket (but it does not clearly appear to have been properly enrolled on the minutes of the court) that the cause was dismissed for want of prosecution.

Appellant on this appeal claims that such disposition of that cause is res adjudicata of complainants' rights in this. Assuming that the pleadings here are sufficient to present that question, and that the dismissal was on the merits (rule 28), and properly entered on the minutes, we are not disposed to agree with the claim.

The theory upon which relief was sought in the first case as shown by the pleadings was that Alice V. Hunt and C. B. Hunt were joint owners of the land. It then proceeded upon the claim of an unexecuted contract of sale by him to her, and that the purchase money was paid and she was put in possession. Complainants in this suit claim that the deed was to secure a debt which has been paid, and seeks no relief in the nature of specific performance. Res adjudicata exists when "the matters of the two suits are the same, and the issues in the former suit were broad enough to have comprehended all that is involved in the issues in the second suit," and includes "what they might and ought to have litigated in the former suit." Tankersly v. Pettis, 71 Ala. 179; Glasser v. Meyrovitz, 119 Ala. 152, 24 So. 514; Wood v. Wood, 134 Ala. 557, 33 So. 347; Crowson v. Cody, 215 Ala. 150, 110 So. 46.

In Glasser v. Meyrovitz, supra, a final disposition of a suit in equity to declare certain attachment suits to be a general assignment was held no bar to another suit by the same parties setting up the same facts but seeking to have such attachments vacated as in violation of the statute of fraud for having been commenced with the intent to defraud. While under the statutes then in effect, such claims could not have been united in one suit in the alternative (being prior to the amendment contained in section 3095, Code 1907, section 6526, Code 1923; Lambert v. Anderson [Ala. Sup.] 139 So. 287), and while, under those statutes as now framed, such inconsistent claims may be united in the same suit in the alternative, the revision of the statute to that effect merely confers the option to join such claims, but does not make it a duty. Though not joined, the court will not declare that they ought to have been, and were therefore within the issues that should be regarded as having been made. ...