Curb v. Grantham

• Decision Date: 20 November 1924
• Docket Number: 2 Div. 838
• Citation: 212 Ala. 395,102 So. 619
• Parties: CURB v. GRANTHAM.
• Court: Alabama Supreme Court

102 So. 619

212 Ala. 395

CURB v. GRANTHAM.

2 Div. 838

Supreme Court of Alabama

November 20, 1924

Rehearing Denied Jan. 22, 1925

Appeal from Circuit Court, Perry County; S.F. Hobbs, Judge.

Bill in equity by Issie B. Grantham against W.E. Curb and John D Edwards, to foreclose a mortgage on real estate. From a decree granting the relief prayed, respondent Curb appeals. Affirmed.

A.W Stewart, of Marion, and Craig & Craig, of Selma, for appellant.

J.F Thompson, of Birmingham, and Clifton C. Johnston, of Marion for appellee.

GARDNER J.

Bill by appellee against appellant and another for the foreclosure of a mortgage on certain real estate situated in Marion, Alabama. The defense was that the complainant had been paid in cash and store account the larger portion of the mortgage debt, and the small balance remaining had been tendered before the filing of the bill. The answer was made a cross-bill with the prayer that the mortgage be canceled as a cloud on the title. Respondent (appellant here) demanded that the issue of fact presented be tried before a jury, and the action of the court in refusing this demand is assigned as error.

It is now too well understood and firmly settled for discussion that a trial by jury as a matter of right in a court of chancery depends solely upon statutory or constitutional provisions therefor. 21 Corpus Juris, 585. This rule of law is not controverted by counsel for appellant, but the insistence seems to be that the cross-bill comes within the purview of the statute to quiet title (section 9905, Code 1923), and that jury trial is therefore provided in such proceedings (section 9908, Code 1923). Of course one of the essential elements of a statutory bill to quiet title is that "no suit is pending to enforce or test the validity of such title," which is contradicted and disproved by the answer itself and the entire proceedings. Recourse, very clearly, cannot be had therefore to the foregoing statute, and it results the court committed no error in the denial of the demand for jury trial.

The only remaining question presented relates to the finding of the chancellor upon the facts. It is a question not free from difficulty, as there was sharp and irreconcilable conflict in the evidence. A discussion of it here will serve no useful purpose, nor has it been the policy of the court to enter into a detailed consideration of questions of fact since the passage of the act...