Cox v. Cox

• Decision Date: 01 February 1923
• Docket Number: 1 Div. 253.
• Citation: Cox v. Cox, 209 Ala. 75, 95 So. 275 (Ala. 1923)
• Parties: COX ET AL. v. COX.
• Court: Alabama Supreme Court

95 So. 275

209 Ala. 75

COX ET AL. v. COX.

1 Div. 253.

Supreme Court of Alabama

February 1, 1923

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action in ejectment by Margaret Cox against William Cox and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Edward J. Grove, Webb & Shepard, and Smiths, Young, Leigh &amp Johnston, all of Mobile, for appellants.

Stevens McCorvey, McLeod & Goode, of Mobile, for appellee.

GARDNER J.

Statutory ejectment by appellee against appellant. It is not questioned that plaintiff made out a prima facie case for recovery, and the assignments of error relate to rulings of the court sustaining objections to evidence offered by defendant, and giving the affirmative charge in writing at plaintiff's request.

The defendant William Cox offered evidence tending to show that he went into the possession of the property in controversy under a bona fide contract between himself and the plaintiff in which he (the defendant Cox) accepted the property in full payment of services rendered by him for the plaintiff, and with the understanding that plaintiff would execute and deliver a deed conveying the property to him. The alleged agreement was verbal. The court sustained the plaintiff's objection to this testimony, and we think correctly so.

The contention on the part of counsel for appellant is that while this alleged contract was not sufficient to divest the plaintiff of the legal title, yet it was sufficient to show that defendant was in rightful possession at the time the suit was brought and at the time of the trial and that it should therefore be admitted as a defense to this action. Counsel rely upon the statement in our decisions to the effect that a plaintiff in ejectment must not only show title, but also a right of possession at the commencement of the suit, citing Bush v. Fuller, 173 Ala. 511, 55 So. 1000; Cofer v. Schening, 98 Ala. 338, 13 So. 123; Williams v. Hartshorn, 30 Ala. 211; Roman v. Lentz, 195 Ala. 610, 69 So. 827; and Harris v. Hill, 190 Ala. 589, 67 So. 284. We have examined these authorities with care, but are persuaded that they do not support the position of appellant's counsel in the instant case. The matters there rested for defense in the actions of ejectment were such matters as were recognized and enforceable in a court of law. A different question is here presented.

The defendant in the present suit offers an equitable title to defend the legal title shown by the plaintiff. In this state we have steadfastly maintained the separate and distinct jurisdictions of courts of law and of equity, and in numerous cases it has been held that such equitable defense will not prevail against the legal title. As said by this court in Kelly v. Hendricks, 57 Ala. 193:

"It is settled by former decisions that in an action of ejectment, or the corresponding real action prescribed by statute, a plaintiff showing a superior legal title must recover whatever may be the equities of the parties. The defendant may be the vendee of the plaintiff, in possession, holding the plaintiff's bond for title, on the payment of the purchase money, and may have fully paid it, entitling himself to a specific performance, yet the legal title *** must prevail at law, and the defendant must resort to equity for relief."

Again, in Nickles v. Haskins, 15 Ala. 619, 50 Am. Dec. 154, is the following language, here pertinent:

"The bond, at most,

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