Brackin v. Newman

• Decision Date: 17 May 1899
• Citation: Brackin v. Newman, 121 Ala. 311, 26 So. 3 (Ala. 1899)
• Parties: BRACKIN v. NEWMAN.
• Court: Alabama Supreme Court

26 So. 3

121 Ala. 311

BRACKIN v. NEWMAN.

Supreme Court of Alabama

May 17, 1899

Appeal from chancery court, Henry county; Jere N. Williams Chancellor.

Bill by Martha E. Brackin against Robert Newman. A demurrer to the amended bill was sustained, and complainant appeals. Affirmed.

The bill sought to have established a resulting trust in certain lands owned and occupied by the defendant. The bill alleged that the complainant's husband bought the lands in question with the rent and proceeds of sale of other lands belonging to her statutory separate estate; that the deed of said lands was executed to her husband on January 6, 1881 and that her husband, after the execution of said deed, took possession of said lands, and continued in possession thereof, "claiming and cultivating and exercising acts of ownership over them openly and publicly as his own, until they were sold under a mortgage, and from that time has been renting the premises from said Newman." It was further averred in the bill that after the execution of the deed in 1881 the complainant's husband executed a mortgage on said lands to the mother of the defendant, Newman, in 1892 and that, upon default being made in the payment of the mortgage debt, the lands were sold under the mortgage, and the defendant, Newman, became the purchaser thereof. It was averred in the bill that the complainant signed said mortgage. The defendant, Newman, demurred to the bill on the ground that it showed on its face that it was barred by the statute of limitations of 10 years. This demurrer was sustained, the complainant being allowed 30 days within which to amend her bill. An amended bill was filed, in which it was averred that, the demurrer to the original bill having been sustained, "comes the complainant, and, by leave granted by the chancellor in his decree rendered on said demurrer files this, her amended bill of complaint." In this amended bill the complainant averred that she had learned of her husband taking the title to the land in his own name since its occurrence. In other respects the amended bill contained substantially the same allegations as the original bill, except that it did not contain averments as to the complainant's husband taking possession of said lands and openly and publicly claiming ownership thereof, nor did it contain any averments striking these allegations out of the original bill, nor any allegations whatever in conflict with them. To the amended bill the defendant, Newman, demurred upon the ground that the bill showed on its face that complainant's rights were barred by the statute of limitations of 10 years, and that the claim of complainant is stale. Upon the submission of the cause upon this demurrer the chancellor rendered a decree sustaining it. From this decree the complainant appeals, and assigns the rendition thereof as error.

H. A. Pearce, for appellant.

J. G. Cowan, for appellee.

McCLELLAN C.J.

If the complainant intended to present her whole case in the amended bill, she should have stricken out the original bill. Failing this, the two together are to be taken as constituting the bill of complaint in the cause...