Behan v. Friedman

• Decision Date: 30 June 1927
• Docket Number: 6 Div. 916
• Citation: 216 Ala. 478,113 So. 538
• Parties: BEHAN et al. v. FRIEDMAN et al.
• Court: Alabama Supreme Court

113 So. 538

216 Ala. 478

BEHAN et al. v. FRIEDMAN et al.

6 Div. 916

Supreme Court of Alabama

June 30, 1927

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Bill in equity by Samuel Friedman and others against W.J. Behan and others, and cross-bill by respondents against complainants and another. From a decree sustaining demurrers to the cross-bill, respondents appeal. Affirmed.

Garber & Garber, R.D. Gilliam, Jr., and W.H. Smith, all of Birmingham, for appellants.

A.F Fite and C.D. Shepherd, both of Jasper, for appellees.

THOMAS J.

The original bill, filed of date of July 19, 1926, amended September 1, 1926, by Friedman et al., was to quiet title to lands against appellants. The latter answered of date of October 26, 1926, and made the same a cross-bill, denied complainants' title, asserted their superior title and ownership, and prayed that the title be so declared in appellants. The cross-complainants set out the source of their title back to the deed by Musgrove to Dashiell of June 2, 1887, and that by mesne conveyances complainants in the cross-bill succeeded to the title of Dashiell as acceding to his rights.

It is further alleged that there was a warranty of title in the grantors and a covenant to defend the title to Dashiell and his assigns. Musgrove is made a party defendant to the cross-bill, and a moneyed judgment sought by cross-complainants against said original grantor, Musgrove for the amount of the purchase price paid him on June 2 1887, by Dashiell, if the title warranted failed.

The demurrers to the cross-bill, among other things, pointed out the misjoinder as to Musgrove and his interest or liability as to said land by its original sale with covenants of warranty and to defend the title. This relief prayed for, as against Musgrove, was foreign to any proper issue that was presented as to title or interest in the lands made the subject of the cross-bill between the parties and as pertinent or germane to the original bill; that is to say, any right of action cross-complainants, respondents in the original bill, may have had against Musgrove growing out of these lands, as a remote owner of the same, was wholly foreign to any issue between the parties to the original bill. The general rule as to a cross-bill is contained in Ex parte Conradi, 210 Ala. 213, 97 So. 569; Meyer v. Calera Land Co., 133 Ala. 554, 31 So. 938; O'Neill v. Perryman, 102 Ala. 522, 14 So. 898; Tutwiler v. Dunlap, 71 Ala. 126; Stammers v. McNaughten, 57 Ala. 277; 21 C.J. 506, § 613.

The cases cited by appellants, held not multifarious, are Smith v. Rhodes, 206 Ala. 460, 90 So. 349, where the bill was filed to quiet title, and the preservation by injunction and for damages of the status quo as to timber on the part of one of the parties or agents thereof was had. There was no third party brought in, and no issue not germane to the matter involved between the parties was presented. Cooper v. Brown & Sons Lumber Co., 214 Ala. 400, 108 So. 20, where the bill was held insufficient--no third parties introduced by cross-bill--has no bearing; held the right to accounting between the parties was not presented on the pleadings as framed. The case of Ashe-Carson Co. v. Bonifay, 147 Ala. 376, 41 So. 816, was one in which bill was filed by lessees of turpentine rights against the lessors thereof, defendants to the original bill, who had violated the lease by cutting trees boxed by complainants, the lessees, and prayed injunction and ascertainment of damages already accrued by such violation. The defendants, by cross-bill, alleged a violation of the lease by the lessees, complainants, by boxing smaller trees than they had a right to box, and prayed damages therefor as an offset against the complainants' claim. The matters set up by defendants were germane to the matters set up in the original bill and directly responsive thereto. And no other or third parties were brought in. The bill was to quiet title to land and enjoin foreclosure in Interstate B. & L. Ass'n v. Stocks, 124 Ala. 109, 27 So. 506, and the decision was on demurrer to the original bill, challenging...