Dailey v. Koepple

• Citation: 164 Ala. 317,51 So. 348
• Parties: DAILEY v. KOEPPLE.
• Decision Date: 30 June 1909
• Court: Supreme Court of Alabama

51 So. 348

164 Ala. 317

DAILEY v. KOEPPLE.

Supreme Court of Alabama

June 30, 1909

Rehearing Denied Dec. 16, 1909.

Appeal from Tuscaloosa County Court; Ormond Somerville, Special Judge.

Injunction by William A. Koepple against John R. Dailey. From a decree for complainant, respondent appeals. Reversed and rendered on rehearing.

Mayfield J., dissenting.

Daniel Collier, for appellant.

Oliver Verner & Rice, for appellee.

DENSON J.

The purpose of this bill is to enjoin the prosecution of a statutory action of ejectment brought by the respondent against a tenant of the complainant in possession of the lands sued for at the commencement of the action, and to have a deed, through which it is alleged the respondent mediately claims title to the lands, declared void as being a forgery, and to have the deed removed as a cloud on the complainant's title. The respondent filed a motion to dismiss the bill, and also demurred to it on the ground that it showed on its face that the complainant had a complete and adequate remedy at law. Without first having the motion and demurrer passed upon by the chancellor, he filed his answer, in which, after reserving the right to have the motion and demurrer passed upon, he denied all of the material allegations of the bill, and alleged the deed attacked by the bill to be genuine and free from forgery. As finally settled in the case of Wilson v. Miller, a case in all its material aspects identical with the one in judgment, this bill is wholly without equity, and the motion to dismiss and the demurrer were well filed. Wilson v. Miller, 143 Ala. 264, 39 So. 178, 111 Am. St. Rep. 42; Hudson v. Jackson, 144 Ala. 411, 39 So. 227.

But it is insisted by the appellee (complainant) that the demurrer and motion were waived, because they were never set down for hearing, and the chancellor in his final decree makes no mention of them. It is not deemed necessary to recite all of the facts which preceded the rendition of the final decree, or any which occurred afterwards. It suffices to say that, in the note of submission upon which the cause was finally determined, the respondent, as is there shown, submitted his cause on the motion to dismiss the bill, on the demurrer to the bill, and on the depositions of certain witnesses named. In this way the attention of the chancellor was directed to the motion and the demurrer, and it became his duty to take notice of them in the decree. The final decree was rendered on the 28th day of February, 1908, granting the relief prayed in the bill, but not making any mention of the deposition of the motion or demurrer eo nomine. According to the law of the case (Wilson v. Miller, supra), the bill cannot be amended so as to impart equity to it. Indeed, the objection made by the motion is, not that the facts alleged are illy pleaded, but that within themselves, however clearly or fully they might be stated, they cannot be made the basis for equitable relief. Such being the state of the case, the chancellor might well have dismissed the bill ex mero motu. Jackson v. Knox, 119 Ala. 320, 24 So. 724; Gardner v. Knight, 124 Ala. 273, 279, 27 So. 298.

It is also said, in the argument of appellee's counsel, that appellant is estopped from insisting that the motion should have been sustained for the reason that he invited the court to pass on the merits of the case without regard to the motion. We know not from the record what the argument of counsel was before the chancellor, nor can we look to the opinion of the chancellor for enlightenment on that subject. But full relief was granted by the final decree to the complainant, and, whatever may be the rule of presumption of waiver of demurrer arising from the fact that a decree fails to pass upon it, we think it cannot and should not be applied to the motion in this cause, for the reason that in granting the relief prayed by the bill the equity of the bill is sustained and the motion is of necessity held for naught--overruled.

We have found no case in conflict with this view. None of those cited by appellee are in point on the question, for in all of them, even in respect to demurrers, the facts show that the attention of the chancellor was not called to the demurrer in the note of submission. However, it is not necessary to make the conclusion here reached applicable to demurrers at present.

The court is of the opinion the chancellor committed reversible error in granting the relief to the complainant, and holds that he should have dismissed the bill. The decree of the chancellor will be reversed; and a decree will be here rendered dismissing the bill, as it cannot be amended so as to give it equity.

The motion to dismiss the appeal is ruled against the appellee by the case of Poull & Co. v. Foy-Hays Construction Co., 48 So. 785.

Reversed and rendered.

DOWDELL, C.J., and SIMPSON, ANDERSON, SAYRE, EVANS, and McCLELLAN, JJ., concur.

MAYFIELD J. (dissenting).

While I concurred in the majority opinion on the first hearing, I am, on the rehearing, now persuaded that our opinion is wrong; that the application for a rehearing should be granted; that the judgment of reversal should be set aside, and a judgment here rendered affirming the decree of the chancellor.

It is true that the opinion in this case followed, and was based solely on, the opinion in the case of Wilson v. Miller, 143 Ala. 264, 39 So. 178, 111 Am. St. Rep. 42, which decision, after a careful examination, I find to be in conflict with many prior decisions of this court, and especially with that in the case of Lehman v. Shook, 69 Ala. 492. True, the opinion in the Wilson-Miller Case attempts to harmonize the three opinions, one of Brickell, C.J., one of Somerville, J., and one of Stone, J., by showing that Somerville, J., did not concur with Brickell, C.J., and that, therefore, Lehman v. Shook was not the decision of a majority of the court, and consequently prefers to follow the dissenting opinion of Stone, J., who dissented from the conclusions of both Brickell, C.J., and Somerville, J., in the case of Lehman v. Shook. It is true, and cannot be denied, that the dissenting opinion of Stone, J., in that case, like most all of his opinions, is very strong and persuasive. No one has a greater admiration for or appreciation of Judge Stone's opinions than the writer. I believe that he wrote the most forceful and convincing opinions of all the judges after whom I have read. His greatness in this regard is nowhere better evinced than in his dissenting opinion in the case of Lehman v. Shook, supra, and in the old but famous case of Miller v. Marx, 55 Ala. 322, wherein he demonstrated that the constitutional provision that the homestead "not exceeding eighty acres" shall be exempt, etc., was a limitation downwards, and not upwards--in short, that the phrase as there used meant "not less than eighty acres." But notwithstanding his greatness in this respect he was human, and it is human to err; and in this case he erred. But no one will believe it from reading his opinion, for in it he comes very near demonstrating that he is correct. It is possible that he was correct in that dissenting opinion, and it is likewise possible that the decision in Wilson v. Miller is correct, but I do not think it is probable. So far as I am able to find and understand the authorities on the subject, including textwriters and adjudged cases, there are few, if any, that support the conclusions reached in the case of Wilson v. Miller, besides the dissenting opinion of Judge Stone in the case of Lehman v. Shook. So far as I can understand the text-books and the decisions of the courts, they all announce principles and rules of law, and of equity jurisdiction, pleadings, and practice, which, if true (and all the authorities support them, even the dissenting opinion of Judge Stone in Lehman v. Shook and the opinion in Wilson v. Miller), condemn the conclusion reached in the WilsonMiller Case and that in the case at bar.

I will here attempt to collect and restate some of these principles and rules of law and equity which all the authorities support, and attempt to show that, if they are true, the conclusion of the majority in this case must be wrong, and that Wilson v. Miller should be overruled, and that Chief Justice Brickell's opinion in Lehman v. Shook should be followed.

(1) Equity has original, independent, and exclusive jurisdiction to remove a cloud from title to lands, and therefore does not require any accompaniment of fraud, accident, mistake, or the like, to intervene for this purpose.

(2) "A cloud upon title," is a title or incumbrance apparently valid, but in fact and truth invalid. The true test is, if the person claiming under the alleged cloud should bring an action against the true owner, would...