Brown v. Feagin

• Citation: 57 So. 20,174 Ala. 438
• Parties: BROWN v. FEAGIN.
• Decision Date: 29 June 1911
• Court: Supreme Court of Alabama

57 So. 20

174 Ala. 438

BROWN v. FEAGIN.

Supreme Court of Alabama

June 29, 1911

Rehearing Denied Dec. 21, 1911.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Arthur L. Brown against John Vary and others to sell land for partition and to vest the title to said lands in the true owner, revived after death of Vary in the name of N. B Feagin as administrator. Decree for said respondent on demurrer, and complainant appeals. Affirmed.

The bill is filed against John Vary, Charles D. Smith, Walter L Smith, Celia Smith, Charles D. and Walter L. Smith, as administrators of the estate of R. D. Smith, deceased, and the Alabama National Bank, a corporation. The facts as made by the bill are that R. D. Smith, father of the respondents Smith, and the intestate of the administrators, was indebted to the Birmingham National Bank in the sum of about $40,000 and in order to secure the same executed and delivered to said bank, its successors and assigns, an assignment of all claims, right of rescission, and all other rights and remedies, which the assignor had against the Birmingham Furnace Manufacturing Company and certain named individuals growing out of a breach of the contract in reference to certain land, and also conveying all right, title, and interest that the assignor had in and to the mineral land described in a deed from Ewing, treasurer, to the Birmingham Furnace & Manufacturing Company, which deed is recorded in Book 83, p. 495, of the probate judge's office in Jefferson county, dated November 14, 1893. It is then alleged that the Alabama National Bank for value received acquired this indebtedness of Smith, and also the securities above set out, securing said indebtedness. Exhibit B describes the land above referred to in said securities. It is then alleged that in 1899 Smith filed a petition in bankruptcy, and that at the time of filing the same he owned certain real estate in Jefferson county, Ala., as described in Exhibit B, but that said real estate was not embraced in the schedules filed by said Smith as an asset of the said bankrupt estate. It is then alleged that, if the representations of said Smith that he did not own said land at said time were true, he, by the instrument set out as Exhibit A, estopped himself and his heirs from claiming any title therein, even though it may have been acquired after said mortgage or instrument in writing, called Exhibit A, and the said bankruptcy proceeding. It is then alleged that at the time he filed said bankrupt proceedings he had a perfect equity in said land, and had agreed to accept the same in settlement of his right of action referred to in Exhibit A, and that any title subsequently acquired by him inured to the purchaser from the trustee in bankruptcy and the grantors of said purchaser. The bill then alleges a petition by the trustee in bankruptcy for the sale of said land, and order and decree entered thereon, a sale in pursuance of said order, and a purchase by and conveyance to the Alabama National Bank of the lands described in Exhibit B. It is alleged that the Alabama National Bank went into possession of the property acquired by the deed, and on the 27th day of May, 1905, conveyed all of said lands to John Vary, and that later Vary executed and delivered to complainant a deed conveying to him a one-tenth undivided interest in said land, which deed was duly filed and recorded. It is then averred that Vary owned a nine-tenths, and complainant a one-tenth, interest, and that the lands cannot be equitably divided without a sale thereof. Paragraph 10 and the prayer sufficiently appear in the opinion.

Smith & Smith, for appellant.

Charles A. Calhoun and Tillman, Bradley & Morrow, for appellee.

SOMERVILLE J.

The bill of complaint is filed by Arthur L. Brown, as complainant, against John Vary, Chas. D. Smith, Walter L. Smith, Celia Smith, Chas. D. and Walter L. Smith, as administrators of the estate of R. D. Smith, deceased, and the Alabama National Bank, a corporation. It shows that complainant owns an undivided one-tenth interest in the land described in the bill, and that the respondent John Vary owns the remaining undivided nine-tenths.

The relation of the other respondents to the cause is shown by paragraph 10 of the bill, as follows: "Complainant avers that respondents Charles D. Smith, Walter L. Smith, Celia Smith, and Charles D. Smith and Walter L. Smith, administrators of the estate of C. D. Smith, deceased, and the Alabama National Bank, claim to have or own some kind or character of interest in said lands, which said claims cast and create a cloud upon the title of complainant and that of respondent John Vary to said lands."

The prayer for relief is: "That all said respondents be required to propound their interests in the lands mentioned in this bill of complaint; that upon final hearing of this cause the interests of all parties concerned be ascertained, and that said lands mentioned may be sold under decree of this court for division, or divided by metes and bounds in the event the court should ascertain that said lands can be divided by metes and bounds; that it appoint commissioners and empower them to so divide said property between the parties in interest; and that the title of said lands may be decreed to be vested in the true owners thereof. And complainant prays for such other, further, additional, or different relief as the facts may warrant or equity demand."

The respondents Smith interposed a demurrer to the bill, assigning 16 grounds, and the chancellor sustained the demurrer generally, from which decree complainant appeals. The only grounds we need now notice are the following:

"(3) For that said bill fails to allege that there is no suit pending to try the title to the property which is the subject-matter of the bill.

"(4) For that the bill fails to aver or show that the complainant was in the possession of the property described in said bill at the time the said bill was filed."

"(6) For that said bill is multifarious, in that it seeks two remedies and reliefs, to wit: It seeks to have said property sold or partitioned, and it seeks to have the title to said property quieted and cleared."

"(8) For that it does not appear from the allegations of said bill that said lands are held by the parties to this suit as joint owners or tenants in common." Considered as a bill to quiet title, the bill here exhibited is plainly defective, and subject to the third and fourth grounds of demurrer. Brown v. Hunter, 121 Ala. 210, 25 So. 924; Moore v. Alabama National Bank, 139 Ala. 273, 35 So. 648. But judged by its averments and prayer for relief,

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