"2.
That heretofore, on, to-wit, the 30th day of October, 1930
complainant Tarrant Land Company leased and let in writing to
one Charles Darring for the period of, to-wit: ten years, to
the first day of December, 1940, the following described real
property and premises, to-wit: * * *
"A
copy of said lease is hereto attached as 'Exhibit A'
and made a part hereof to the same extent and as fully as if
herein set out in full; that upon execution of said lease
Charles Darring entered upon said premises and took
possession thereof;
"3.
That in and by the terms of said lease and as a part of the
consideration therefor it was provided,--'That the lessee
shall not under lease, sub-let or sub rent said premises or
any part thereof or transfer or assign within lease without
the written consent of lessor or his agents. Each transfer
and assignment, and each sub-letting or renting of said
premises unless the written consent of the lessor or his
agents be first obtained shall be null and void, at the
option of the lessor or his agent.', and orator avers
that neither it nor its agents has given its consent to any
under-lease, sub-let or sub rent of said premises or any part
thereof nor to any transfer or assignment of said lease and
orator elects to treat any attempted under lease, sub-letting
or sub-renting of said premises or any attempted transfer or
assignment of said lease as null and void.
"4a.
Complainant is informed and believes and upon such
information and belief avers that said Charles Darring and
the respondents used said premises and operated thereon the
business of wholesale and retail sale of butane gas. Orator
avers that said Charles Darring never surrendered possession
of said premises to complainant; that said Charles Darring
died intestate on, to-wit: the 5th day of March, 1942, and
there has been no administration of his estate; that the
respondents are still in possession of said premises.
"5a.
Orator further avers that on October 23, 1934, a certificate
of incorporation was filed in the Probate Office of Jefferson
County, Alabama, by Charles Darring, Louis Darring and Eva
Darring incorporating American Oil Company, the said Louis
Darring being the brother and Eva Darring the sister of
Charles Darring. In said certificate Charles Darring is
designated as President, Louis Darring, Secretary and
Treasurer and Eva Darring Director. Orator is informed and
believes that on such information and belief avers that the
individuals who are designated as officers and directors of
said corporation were in the active charge of the business of
said corporation.
"6a.
Orator further avers that on August 4, 1938, a certificate of
incorporation was filed in the Probate Office of Jefferson
County, Alabama, incorporating Alabama Butane Gas Company, by
Charles Darring, A.G. Harding and Dr. John L. Endsley in
which certificate Charles Darring is designated as President
A.G. Harding, Vice President and John L. Endsley as Secretary
and Treasurer. Orator is informed and believes and on such
information and belief avers that said Alabama Butane Gas
Company, a corporation, was managed and controlled by Charles
Darring, Eva Darring and Louis Darring and operated a butane
gas business on said premises.
"7a.
Orator further avers that it is informed and believes and
upon such information and belief orator avers the fact to be
that at all times during the term of said lease Charles
Darring, Eva Darring and Louis Darring have been in control
of the business operated on said premises under said lease
that they have been the dominant persons in charge of the
business on said premises; that the said corporations were
family owned corporations, and were merely simulations for
the purpose of operating said business on said
premises.
"8.
Orator further avers that in any by the terms of said lease
and as a part of the consideration therefor it is provided
'That if the lessee shall continue in possession of any
part of said premises after the expiration of the aforesaid
term, without the written consent of lessor or his agents
then this lease, at the option of the lessor or his agents
shall continue in full force until the next September
Thirtieth with all conditions, covenants and terms herein set
forth except the rental of said premises shall be double the
amount herein fixed.'
"9.
That the rental contracted to be paid by said Charles Darring
for the tenth year was Seventy ($70.00) dollars per month and
orator admits payment of rent for said premises to December
1st, 1940; that no rental has been paid for said premises
since December 1st, 1940, and all rents subsequently accruing
are in default and unpaid;
"10.
That said lease contained the further agreement in words and
figures as follows: 'It is understood and agreed as a
part of the consideration for this lease that in the event of
default by the lessee in the payment of the rents herein
reserved and provided to be paid for a period of six
consecutive months during the term of the lease, that all of
the buildings and improvements of every kind and character
erected on said premises shall revert to and become the
property of the lessor and thereafter the lessee shall have
no right, title, interest or claim thereon.'
"11a.
Orator avers that during the period of tenancy of said
premises said Charles Darring and the respondents have
erected on said premises a large tank for the storing of
Butane gas with pipes attached thereto, said tank being upon
substantial pillars, and said tank so attached to said pipes,
largely placed underground, that a substantial building has
been erected on said premises, containing foundations to
which are affixed machinery, pumps and motors for the
operation of a butane gas business; that there has been
erected a gasoline filling station on said premises with a
large tank buried underground with gasoline pump attached and
that all of said improvements were erected by the said
Charles Darring and the respondents.
"12a.
That in the conduct and operation of said butane gas business
or businesses defendants have owned tank trucks which were
brought on said premises for the hauling of butane gas to
customers, which said trucks have enjoyed the use and
protection of said premises; also various items of personal
property, furniture and equipment were brought on the
premises by defendants and have enjoyed the use and
protection of said premises.
"13.
That in said lease lessee further agreed to pay the lessor or
his agents a reasonable attorney's fee in the event of
the employment of an attorney to collect any rents, damages
or amounts that may become due by lessee under said contract
or to file and prosecute a suit against lessee or one holding
under the lease, or for unlawfully withholding possession of
said premises.
"Wherefore,
the premises considered: Complainant prays:
"(a)
That process be issued as provided by law to the said Alabama
Butane Gas Company, a corporation, American Oil Company, a
corporation, Louis Darring, Eva Darring, making them and each
of them parties respondent in this cause and requiring each
of them to plead, answer or demur within the time required by
law or upon their failure to do so, to suffer a decree pro
confesso against them.
"(b)
That an Administrator Ad Litem of the Estate of Charles
Darring, deceased, be appointed by this Honorable Court; that
such administrator Ad Litem be made a party respondent to
this bill of complaint by proper service and that he be
required to plead, answer or demur to this bill of complaint
within the time required by law or to suffer a decree pro
confesso against him in the premises.
"(c)
That a decree be entered in this cause ordering the Register
to hold a reference and to ascertain and report:
"1.
The amount due complainant as rent for said premises, with
interest thereon.
"2.
What is a reasonable amount to be paid complainant for his
Solicitor's fees for his services in filing this bill of
complaint and prosecuting this suit to a conclusion.
"(d)
That upon coming in of the Register's report a decree be
entered confirming the same.
"(e)
That upon final hearing of this cause a decree final be
entered herein decreeing that complainant have absolute title
in and to all the buildings and improvements of every kind
and character erected on the said premises and specifically
describing the same; decreeing the amount due complainant for
rent, plus interest and a reasonable amount as
Solicitor's fees for services, rendered in this cause and
giving complainant a judgment against the estate of Charles
Darring, deceased, for said amount and a judgment against
each of the other said respondents, namely: Alabama Butane
Gas Company, a corporation, American Oil Company, a
corporation, Louis Darring, Eva Darring, to the extent that
the proof may show each of them respectively, to be liable
with a lien upon said tank trucks and other items of personal
property furniture and equipment that have enjoyed the use
and protection of said premises to the extent provided by law
in such cases and specifically describing said items on which
such lien is given and ordering that the Register sell the
same for satisfaction of the decree in accordance with the...
