Burns v. Lenoir

• Court: Alabama Supreme Court
• Writing for the Court: FOSTER, J.
• Citation: Burns v. Lenoir, 220 Ala. 422, 125 So. 661 (Ala. 1930)
• Decision Date: 16 January 1930
• Docket Number: 4 Div. 457.
• Parties: BURNS v. LENOIR ET AL.

125 So. 661

220 Ala. 422

BURNS v. LENOIR ET AL.

4 Div. 457.

Supreme Court of Alabama

January 16, 1930

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Bill in equity by Effie Burns against Annie Lenoir and others, and cross-bill by respondents. From a decree overruling a demurrer to the cross-bill, complainant appeals. Affirmed.

G. W Reeves, of Florala, and A. R. Powell, of Andalusia, for appellant.

C. B Fuller, of Opp, for appellees.

FOSTER J.

This suit was begun by the institution of an action at law to recover the possession of land, and was removed into the chancery court under the statute at the instance of appellant who was defendant in ejectment. Afterwards appellant as the actor filed appropriate pleading in the nature of a bill in equity. She claimed that the deceased husband of one appellee and father of the others advanced the money for appellant to pay the purchase price of the land, but took the title in his own name; that upon her remonstrance, she and he returned the deed to the grantor and caused him to execute another to her and that she executed a note and mortgage, which, after renewal, has been paid. These facts would, if true, entitle her to equitable relief.

Thereupon respondents filed an answer and cross-bill, admitting the execution of the deed to decedent, and that it was destroyed and a new one executed to appellant. They allege that the transaction was not an advance of money for appellant, but that illicit relations existed between decedent and appellant who lived together upon the land in question, and that she, through undue influence, fraud, and in continuance of such illicit relations, and without any valuable or legal consideration, procured the destruction of the deed to decedent and a new one executed to her, and that she had never paid anything to decedent or otherwise on account of the transaction.

From a decree overruling demurrer to the cross-bill appellant has appealed.

The first contention of appellant is that this is not such a nature of suit in equity as to authorize a cross-bill. But that question is not properly presented for review. There was no motion to strike the cross-bill, and a demurrer to it, which was the only pleading, goes to the sufficiency of its averments, and not to the right to file it.

But aside from that we cannot agree with the contention. The decisions of this court have treated the cause, after its removal, for all practical purposes, so far as concerns the relief due to the respective parties, as though the suit were begun by filing the bill of complaint on the equity side. That court will grant full relief, and entertain all such pleadings and proceedings for that purpose as may be appropriate in such court. It will settle all the equitable and legal contentions of the parties growing out of the controversy in the usual manner. Watson v. Hamilton, 211 Ala. 688, 101 So. 609; Cornelius v. Moore, 208 Ala. 237, 94 So. 57.

It is next contended that there is no independent equity in the cross-bill, and that such a bill to remove a cloud from title must show that the complaining party seeking such relief is in possession of the land. This contention fails to take note of a principle which seems to be settled that a cross-bill seeking relief germane to the original bill need not show an equitable claim as distinguished from a legal one. Davis v. Anderson, 218 Ala. 557, 119 So. 670; Stearnes v. Woodall, 218 Ala. 128, 117 So. 643; Tribble v. Wood, 186 Ala. 329, 65 So. 73; Ashe-Carson Co. v. Bonifay, 147 Ala. 376, 41 So. 816; Nelson v. Dunn, 15 Ala. 501; Thompson v. Menefee 211 Ala. 168, 100 So. 107.

If the original bill is dismissed, a different principle determines the sufficiency of the cross-bill if it is sought to continue the litigation so presented. Ex parte Conradi, 210 Ala. 213, 97 So. 569; Moody v. Moody, 216 Ala. 156, 112 So. 752.

The court will very properly adjudge and decree all the rights and claims of the...