Carey v. Hart

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 606.
• Citation: 94 So. 298,208 Ala. 316
• Parties: CAREY v. HART.
• Court: Alabama Supreme Court

94 So. 298

208 Ala. 316

CAREY v. HART.

6 Div. 606.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Ejectment by C. E. Carey against Sidney Hart, transferred to the equity side of the docket when defendant set up matters of equitable defense. From a decree establishing the title to the land in controversy in plaintiff, subject to a lien for the amounts claimed by defendant, plaintiff appeals. Reversed and remanded, with directions.

Powell & Powell, of Birmingham, for appellant.

Haley &amp Haley, of Birmingham, for appellee.

SAYRE J.

Appellant, Carey, brought his action of ejectment against appellee. After filing a plea of the general issue, appellee proceeding under authority of the Act of September 28, 1915 (Acts, p. 830), filed his motion in writing, averring matters of equitable right or defense, and praying that the cause be transferred to the equity side of the docket, which motion, after contest by appellant, was granted, and an order of transfer made accordingly. The statute in such cases (top of page 832) provides that-

"Within thirty days after any such cause has been so transferred the plaintiff or complainant shall make such amendments to the pleadings as may be necessary to conform to the appropriate pleadings in equity court, or failing so to do within thirty days, the cause may be dismissed, in the discretion of the court; and the defendant in any such cause so transferred shall within thirty days after such amendment is filed, plead, answer or demur thereto as required by law or be in default."

Still pursuing the statute, appellee-to whom we shall now refer as complainant-filed his bill, setting forth his equitable right and defense, which, out of deference to the concluding phrases of Peebles v. Bank of Pollard, 201 Ala. 518, 78 So. 872, reaffirmed in Warren v. Crow, 202 Ala. 680, 81 So. 636, he labeled "answer and cross-bill," wherein, for the same reason, he referred to himself as the defendant in the cause. This pleading, referred to in the statute as an "amendment to the pleadings," was nothing more nor less than an original bill, the first pleading in a cause which had been established on the equity side of the docket by the order of transfer; a cause thereafter to proceed as causes ordinarily do in the chancery court. This, we think, is shown by the language of the act which speaks of the party procuring the transfer in this case (the defendant on the law side) as "the plaintiff or complainant," and, in the next succeeding section, provides that when the party procuring the transfer fails to establish or maintain his equity, "the right or defense asserted by him," the cause shall be retransferred to the law docket, and, in effect, shall proceed as if there had been no transfer. Appellant thereupon filed his answer and cross-bill.

By his bill complainant sought to have the legal title confirmed in himself; that is, that his title, which he claimed in virtue of a redemption from the purchaser at a sale foreclosing a first mortgage and the foreclosure of a second mortgage to himself, be quieted, or, in the alternative, that a lien be decreed in his favor for the amount of his second mortgage, the amount expended in redeeming from the foreclosure of the first mortgage, and the amounts expended by him for improvements and taxes. Defendant (appellant) by his cross-bill denied the validity of both mortgages, on the ground that the property described therein was the homestead of his grantor (his father) and that said purported conveyances had not been executed by his grantor's wife (defendant's mother) as required by law, and that complainant's alleged redemption from the foreclosure of the first, or Schwab, mortgage was not made in good faith as second mortgagee, but with full knowledge of the fact that his said second mortgage was a nullity for the reason stated. Further cross-complainant averred that complainant (cross-defendant) "forcibly took possession of said land, and whatever improvements he made thereon were made while in such possession, and that said Hart has been receiving the rents and profits thereof ever since," and prayed that his title be confirmed and that his property be acquitted of the lien claimed by complainant.

The decree confirmed the legal title in defendant, subject however, to a lien in complainant's favor on the several accounts mentioned, and ordered a reference to ascertain the amounts thereof. The decree provided further that "In stating his account the register shall allow complainant [meaning defendant, as we construe the statute] as a credit the amount of the value of the use and occupation of the property described in the complaint, based upon the value of the property less permanent...