Baggett Mercantile Co. v. Vickery

• Decision Date: 25 June 1925
• Docket Number: 3 Div. 656
• Citation: 105 So. 207,213 Ala. 427
• Parties: BAGGETT MERCANTILE CO. et al. v. VICKERY.
• Court: Alabama Supreme Court

105 So. 207

213 Ala. 427

BAGGETT MERCANTILE CO. et al. v. VICKERY.

3 Div. 656

Supreme Court of Alabama

June 25, 1925

Appeal from Circuit Court, Butler County; Arthur E. Gamble, Judge.

Bill in equity by Fannie Vickery against the Baggett Mercantile Company and others. Decree for complainant, and respondents appeal. Affirmed.

Lane &amp Lane, of Greenville, for appellants.

Powell & Hamilton, of Greenville, for appellee.

SOMERVILLE J.

Demurrer to a bill of complaint may be incorporated in the answer at any time before final decree, though no demurrer was originally filed or incorporated. Shaw v. Lindsey, 60 Ala. 344; Harland v. Person, 93 Ala. 273, 9 So 379; sections 6547, 6558, Code 1923. The grounds of demurrer to the bill in this case must therefore be considered on their merits, so far as they are insisted upon.

The three grounds insisted upon are: The want of equity in the bill; the failure of the bill to show that complainant was in possession of the lands when the suit was filed; and the failure of complainant to offer to do equity by repaying to the respondent Mrs. W.A. Baggett, or the respondent Baggett Mercantile Company, the consideration recited in the deed sought to be canceled, or whatever sum of money was paid to complainant's father in that behalf. As here presented the last two grounds comprehend the first, the alleged want of equity depending upon the deficiency of the bill in its allegation of possession, and in its offer to do equity.

That such a bill as this, charging such fraud in the procurement of the execution of the deed as would render it void in a court of law, must ordinarily show that the complainant is in possession of the land when the suit is filed, is of course elementary law. But, conceding the failure of the bill in this case to sufficiently so allege, if complainant's estate were one merely of present seisin, yet since, as to part of the lands she had an estate in remainder only, with no right of present possession, her equity is complete as to those lands without alleging possession. Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73; Fies v. Rosser, 162 Ala. 504, 50 So. 287, 136 Am.St.Rep. 57; Winters v. Powell, 180 Ala. 425, 61 So. 96. The fraudulent procurement of the deed was a single transaction; and when a court of equity obtains jurisdiction for equitable purposes, it will retain it to give full relief, whether legal or equitable, as to all purposes relating to the subject-matter of the bill, even though some of them would not, standing alone, have been proper subjects for equitable interposition. Hause v. Hause, 57 Ala. 262; Ware v. Russell, 70 Ala. 174, 45 Am.Rep. 82; Converse Bridge Co. v. Geneva County, 168 Ala. 432, 53 So. 196; Ellis v. Vandegrift, 173 Ala. 142, 55 So. 781. This ground of demurrer was therefore not well taken.

When the bill shows that the complainant, or the person in whose shoes he stands, received a valuable consideration for the execution of the deed, it must offer to do equity by...