Ex parte Elyton Land Co.
| Decision Date | 22 June 1894 |
| Parties | EX PARTE ELYTON LAND CO. |
| Court | Alabama Supreme Court |
Petition by the Elyton Land Company for a writ of mandamus to compel William W. Wilkerson, judge of the city court of Birmingham Ala., to prescribe the amount of an appeal bond in a certain action to which petitioner is a party, and in which such court had rendered a certain decree adverse to petitioner. Writ granted.
Alex T London, for petitioner.
Brooks & Brooks, for respondent.
Rebecca E. Denny filed her original bill in equity in the city court of Birmingham, against the heirs at law of her deceased husband, Joab Bagley, the Elyton Land Company, and others alleging that her said husband died, intestate, in April 1875, seised in fee of a described tract or parcel of lands, of and in which dower had not been assigned to her; that, after his death, the Elyton Land Company had entered upon and taken possession of the lands, and made improvements thereon; that certain other persons, who were made defendants, entering under said company, were in possession of parts of said lands, and had made improvements thereon. The prayer of the bill is that dower in the lands be assigned to the complainant; that an account be taken of the mesne profits or rents of the lands, from the commencement of the possession of the Elyton Land Company; that it be ascertained what parts of the lands the defendants entering under the company occupied, and that an account of the rents and profits thereof be taken; that an account be taken of the improvements made upon the said lands, and by whom made; that one-third of the rents be decreed to be paid the complainant, with the interest thereon, in such proportions by the several defendants as may be deemed just; and for general relief. The city court rendered a decree ascertaining and declaring that the husband, Joab Bagley, at the time of his death, was seised in fee of the lands, and further declaring that the complainant was entitled to the relief prayed for, and to be endowed in and of the lands. A reference was ordered to ascertain the parts of the lands which had been granted by the Elyton Land Company to the several defendants entering under it; the improvements these defendants had severally made; whether dower by metes or bounds, in these several parts of the lands, could be assigned; further, to take an account of the annual rents and profits of the remainder of said lands-First, exclusive of the improvements thereon made after the death of the husband; second, including the improvements,-and to ascertain what part, if any, of the said lands is woodland, of but little rental value. The Elyton Land Company, desiring to appeal from the decree and to supersede its execution, applied to the judge of the city court to prescribe the amount of the bond to be executed pursuant to the statute. Code, § 3625. The judge, not deeming the decree final, authorizing an appeal, refused to prescribe the amount of the bond. Thereupon the company applied to this court for a mandamus to compel the judge to prescribe the amount of the bond.
The equity of the original bill on which the decree was rendered involved the concurrence and coexistence of these facts: The marriage, the seisin of the husband during coverture, his death, and the possession of the lands, claiming to be tenants of the freehold, by the defendants charged to be in possession and so claiming. These facts constitute the equity of the case. They embrace the substantial merits of the controversy. From them arise the material issues of fact and of law upon which the legal and equitable rights of the parties depend. The decree ascertains and declares the concurrence and coexistence of these facts, and from them deduces the legal conclusion which is expressed that the complainant is entitled to be endowed of the lands, and entitled to the relief prayed for in and by the original bill. The decree thus settles "all the equities of the case," as that term is employed in our decisions, leaving the court to pursue such other and ulterior proceedings as may be necessary to execute the decree, securing to the complainant the full possession and enjoyment of the rights to which she is entitled.
There are certain interlocutory orders or decrees specified in sections 3612-3614 of the Code which the court of chancery or the chancellor, sitting in...
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