Cook v. Whitehead

• Decision Date: 05 April 1951
• Docket Number: 4 Div. 574
• Citation: 255 Ala. 401,51 So.2d 886
• Parties: COOK v. WHITEHEAD et al.
• Court: Alabama Supreme Court

Page 886

51 So.2d 886

255 Ala. 401

COOK v. WHITEHEAD et al.

4 Div. 574.

Supreme Court of Alabama.

April 5, 1951.

McMillan, Caffey & McMillan, of Brewton, and Ralph A. Clark, of Andalusia, for appellant.

Powell, Albritton & Albritton, of Andalusia, for appellees.

LAWSON, Justice.

The question here is whether or not reversible error is made to appear in the action of the trial court in overruling demurrer to a bill in equity.

This suit was instituted in the circuit court of Covington County, in equity, by James Whitehead and Charles Whitehead, minors, who sue by next friend, Mrs. Harold Gilberstadt. The respondents are Joe Z. Whitehead, Joseph Reynolds Whitehead, and I. G. Cook.

Two demurrers were interposed to the bill of complaint. One was a joint demurrer filed by the two Whitehead respondents; the other was filed by the respondent I. G. Cook. Both demurrers were overruled. The respondents Joe Z. and Joseph Reynolds Whitehead have not appealed. The appeal is by the respondent I. G. Cook from the decree overruling his demurrer.

The bill of complaint is described therein as being an original bill in the nature of a bill of review. But the nature of a bill must be determined by its averments, its purpose and its substance, rather than the name given it by the parties. Jones v. Henderson et al., 228 Ala. 273, 153 So. 214; Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33; Averett et al. v. Averett et al., Ala.Sup., 52 So.2d 371.

In so far as the respondent I. G. Cook, the sole appellant here, is concerned, the bill has two aspects.

In one aspect the complainants seek to have vacated: (a) a decree of the circuit court of Covington County, in equity, ordering that 400 acres of land, less the merchantable timber thereon, which the complainants James and Charles Whitehead had inherited from their father, James M. Whitehead, deceased, be sold for division of the proceeds between them; (b) the sale made under that decree; (c) the decree confirming the sale and ordering the register to execute a deed to the purchaser at the sale, Joseph Reynolds Whitehead; (d) the register's deed to Joseph Reynolds Whitehead; (e) a deed from Joseph Reynolds Whitehead and wife to Joe Z. Whitehead; and (f) a deed from Joe Z. Whitehead and wife to the respondent, I. G. Cook.

The averments of paragraphs 2, 3, 4, and 5 of the bill relate to this aspect.

In the other aspect of the bill which is directed at the respondent I. G. Cook, complainants seek (a) the cancellation of a timber deed signed by their father, James M. Whitehead, on July 4, 1942, purporting to convey the merchantable timber then standing on said 400 acres of land to Joe Z. Whitehead, wherein the grantee therein is given fifteen years to cut and remove the timber; (b) the cancellation of a timber deed from Joe Z. Whitehead and wife to the respondent I. G. Cook, executed on, to wit, December 15, 1945, purporting to convey to the said Cook the timber on said 400 acres of land, but limiting the period allowed for cutting and removing to five years; (c) an accounting from Joe Z. Whitehead and I. G. Cook as to the extent of timber cut and removed and payment for the amount so removed. The averments of paragraph 6 of the bill relate to this aspect.

Since the bill here under consideration is in more than one aspect as to the respondent I. G. Cook, consideration must be given to the form of the demurrer of Cook in passing on the question as to whether the trial court erred to a reversal in overruling such demurrer.

The demurrer begins: 'Comes I. G. Cook and demurs to the bill of complaint in this cause filed, and for cause of demurrer shows:.' Then follow four grounds of demurrer which are numbered. They are followed by five unnumbered grounds which, for convenience, we will designate as grounds 5, 6, 7, 8, and 9. Ground 5 is addressed to the second paragraph of the bill, ground 6 to the third paragraph, ground 7 to the fifth paragraph, ground 8 to the sixth paragraph, and ground 9 to the seventh paragraph of the bill. The demurrer then concludes: 'Wherefore, respondent I. G. Cook demurs to the said bill as a whole and to certain paragraphs thereof as herein stated, and to all matters and things therein contained, and prays the judgment of this Honorable Court whether he shall be compelled to make any further answer thereto, and prays to be dismissed with his reasonable costs in this behalf sustained.'

The first four grounds of demurrer clearly go to the bill as a whole. Smith v. Smith, 251 Ala. 694, 39 So.2d 230; Wells v. Wells, 249 Ala. 649, 32 So.2d 697. If a respondent wishes to test the sufficiency of an aspect of the bill separately, the demurrer should be addressed to that aspect sufficiently described, and point out specifically the defects in the allegations with respect to it. First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So.2d 348; Wells v. Wells, supra.

As to those grounds of demurrer which go to the bill as a whole, the question for our decision is whether or not either aspect of the bill was good as against those grounds of the demurrer. If one of the aspects asserts matter of equitable cognizance as against the respondent I. G. Cook, then such grounds of demurrer were correctly overruled. See Sellers v. Valenzuela et al., 249 Ala. 627, 32 So.2d 517, wherein some of our former cases dealing with this question are reviewed.

A ground of demurrer which is specially assigned to a 'paragraph' of a bill is inapt, unless such paragraph sets forth some aspect of the bill on which relief is prayed. Thus, grounds 5, 6, and 7 of the demurrer which are assigned severally to paragraphs 2, 3 and 5 of the bill, which paragraphs merely set forth various features of the transaction upon which, in connection with other averments, relief is sought, are inapt and were properly overruled. Michie et al. v. Bradshaw et al., 227 Ala. 302, 149 So. 809; Qualls v. Union Cent. Life Ins. Co., 242 Ala. 619, 7 So.2d 558.

Ground 8 of the demurrer is not subject to this defect, for it is addressed to the sixth paragraph of the bill of complaint, which paragraph alone sets forth that aspect of the bill seeking cancellation of the timber deeds, an accounting and payment for the timber cut and removed. Michie et al. v. Bradshaw et al., supra.

Ground 9 of the demurrer was correctly overruled in that it was addressed to the seventh paragraph of the bill, which does not affect the respondent I. G. Cook. A demurrer is limited to questions in which the demurrant is interested. Pickens County v. Williams, 229 Ala. 250, 156 So. 548.

The third and fourth grounds of demurrer which, as before indicated, were directed to the bill as a whole and which took the point that the bill was multifarious, are not argued in brief filed here. We have said in many cases that grounds of demurrer not argued are treated as waived. Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107, and cases cited; Lucas v. Lucas, 252 Ala. 626, 42 So.2d 457.

Our review, therefore, is limited to the consideration of the first and second grounds of the demurrer, which go to the bill as a whole, and to the eighth ground, which goes to that aspect of the bill seeking cancellation of the timber deeds, etc.

The first ground of demurrer is as follows: 'That the complainants have not in their bill stated such a case as entitles them in a court of equity to any relief from this respondent touching the matters in said bill.' Such a ground of demurrer is equivalent to the general demurrer, 'there is no equity in the bill.' Alabama Lime & Stone Co. v. Adams, 222 Ala. 538, 133 So. 580, 581; McNeal v. Patterson et al., 236 Ala. 50, 180 So. 773; Equity Rule 14, Code 1940, Tit. 7 Appendix. The same is true as to the second ground of demurrer, which reads: 'That the said bill of complaint is without equity as against this respondent.'

We will first treat that aspect of the bill seeking to vacate the decree ordering the 400 acres of land sold for division, the sale, the decree confirming the sale and ordering the execution of a deed to the purchaser, Joseph Reynolds Whitehead, and the subsequent conveyances. Certain of the records in the proceedings to sell the land for division are made a part of this bill. It appears therefrom as follows:

On July 30, 1945, a bill of complaint was filed in the circuit court of Covington County, in equity, in which Joe Z. Whitehead, as administrator of the estate of James M. Whitehead, deceased, and Jimmy (James) Whitehead and Charles Whitehead, minors suing by Joe Z. Whitehead as next friend, were the complainants and Jessie Whitehead was the sole party respondent. This bill in substance alleged that the administration of the estate of James M. Whitehead, deceased, is pending in the probate court of Covington County; that the only heirs and distributees of that estate are the two minor sons, Jimmy (James) and Charles, whose mother is also dead and who have no legal guardian; that it is the judgment and opinion of the administrator of the estate that it can best be administered in the circuit court of Covington County, in equity; that of the assets of the estate of James M. Whitehead, deceased, there are 400 acres of land situate in Covington County, which is owned jointly by the said minor sons, in equal shares, excepting and excluding the merchantable timber standing and growing thereon; that the said 400 acres of land cannot be equitably divided in kind between the two said minor sons of James M. Whitehead; that the respondent Jessie Whitehead 'claims or is reputed to claim, some right, title, lien, or interests, in the lands involved in this cause; and she is called upon to appear and propound, file or otherwise assert her claim, title, lien or incumbrance, if any, which the complainants does (sic) not admit but refutes; to the end that the title be cleared, and that the lands sell for the best price obtainable in the event of a sale of the same by and through this court.' As here...