Clemmons v. Cox

• Decision Date: 15 December 1897
• Citation: 23 So. 79,116 Ala. 567
• Parties: CLEMMONS ET AL. v. COX ET AL.
• Court: Alabama Supreme Court

23 So. 79

116 Ala. 567

CLEMMONS ET AL. v. COX ET AL.

Supreme Court of Alabama

December 15, 1897

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

Bill by J. M. Clemmons and others against H. B. Cox and others to quiet title. From a decree dismissing the bill, complainants appeal. Reversed.

The facts of the case are substantially the same as set out in the report of the case on the former appeal (114 Ala. 350, 21 So. 426) and special reference is here made to the facts as therein stated.

The prayer of the bill was that the title of the land described in the bill be vested in complainants; that Chalker be required to execute a deed of conveyance to them; that the quitclaim deed from Chalker to Cox, and the sheriff's deed to Morris, conveying the lands, be set aside and annulled; that a reference be had to ascertain the amount of the rents, incomes, and profits derived from said lands of Cox and Morris, and the value of the timber cut, sold and wasted; that an injunction be issued restraining Cox and Morris from further cutting, wasting, removing or selling any timber from said lands, and for general relief.

Upon the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainants were not entitled to the relief prayed for, and ordered the bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error.

Carmichael & Thach and W. O. Mulkey, for appellants.

M. E Milligan, for appellees.

HARALSON J.

The facts of the case, as made by the bill, are fully set out in the report of the same on a former appeal (114 Ala. 350, 21 So. 426), to which reference is made, and need not be repeated in full.

Under the facts stated in the bill, as we held before, the complainants own the equitable title to the lands in suit and neither of the defendants, nor all of them together, have any right or title to the same, which is not subordinate to the superior equities of the complainants.

On the trial of the cause on pleadings and proofs, nothing has been brought to light, which changes the legal relations of the parties as declared in our former opinion. The complainants' ancestor paid the full purchase price for the lands and was put in possession of them by his vendor and complainants, as his children, are the owners of the equitable title to the same, as against their ancestor's vendor, the said Chalker; and the defendants, Cox and Morris, who claim under him. Cox and Morris acquired, and could claim under Chalker, no greater rights than he had.

The bill was taken as confessed against Chalker. He was examined as a witness by both sides. He testified: "I owned said lands at one time. I exchanged lands with John M. Clemmons in about 1859. Clemmons made me a deed to the lands described in paragraph four of the original bill, and I put him in possession of the lands described in paragraph three of the original bill, that being what I agreed to do. I sold the lands described in section three of the original bill to one Parker, about two months before I exchanged lands with Clemmons, and made him a deed. Parker paid no part of the purchase money. Parker did not take possession of the land. He gave me a note for said land, for $1,250, which I turned over to Clemmons at the time of the exchange. *** I afterwards heard that Parker's real name was not Parker, but Pickett. *** I remained in possession of said land until I put Clemmons in possession. Clemmons said he would trade, if I would put him in possession and give him Parker's notes, that he could get a title in the chancery court. *** Clemmons paid me in full for all the right, title, and interest I claimed in and to said lands described in paragraph three of the original bill. At the time I traded with John M. Clemmons, I delivered the Parker note to him, and thereupon put him in possession of the lands. *** Since that time, I have never claimed any interest in the said lands, and did not claim any at the time I executed a quitclaim deed to Henry M. Cox. I made Cox a quitclaim deed to said lands, in about 1892, and told him about the trade with John M. Clemmons. It is a fact that I informed H. B. Cox that I neither had nor claimed any right, title or interest in the said lands at the time I executed the quitclaim deed to him."

He further testified, that he had not seen or heard of Parker who professed to live in Georgia, since he executed said deed to him in 1859 or 1860; that Parker has never paid any part of the purchase money, and has never made any claim upon him, Chalker, for the land; that the reason he did not make Clemmons a deed to the land he sold him was, that he had already deeded the land away and could not make him a deed; that Clemmons afterwards requested him to make him a deed, which he declined to do, unless Clemmons would get back the deed he, Chalker, had made to Parker, which deed Clemmons said he had procured, but had afterwards lost. He also further testified, that at the time he executed the quitclaim deed to Cox (who had been to...