Faulk v. Calloway

• Decision Date: 30 June 1899
• Citation: 123 Ala. 325,26 So. 504
• Parties: FAULK ET AL. v. CALLOWAY.
• Court: Alabama Supreme Court

26 So. 504

123 Ala. 325

FAULK ET AL. v. CALLOWAY.

Supreme Court of Alabama

June 30, 1899

Appeal from chancery court, Henry county; W. L. Parks, Chancellor.

Bill in equity by A. L. Faulk and others against J. D. Calloway. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed.

The bill in this case was filed by the appellants against the appellee, who had instituted an action of ejectment for the recovery of the possession of certain lands, specifically described in the complaint, against E. L. Faulk, who was holding said lands as the tenant of the complainants. The case as made out by the bill is stated in the opinion. The defendant demurred to the bill upon the following grounds (1) Said bill contains two grounds of relief stated in the alternative, and each alternative statement is not sufficient to give complainants relief. (2) Said bill contains two alternative statements for relief,-one that respondent Calloway, has estopped himself from asserting a legal title against complainants; the other that complainants bought the lands in question under a void deed, paid the purchase money and made improvements upon the same, and are therefore entitled to a lien upon said lands for the purchase money so paid and the improvements so made,-and that each of said statements is not sufficient to give complainants relief. (3) Said bill contains two alternative statements for relief,-one that respondent is estopped from setting up a legal title against complainants, and the other that complainants paid an incumbrance upon said lands, to wit, a mortgage given by respondent to Koonce, and are entitled to be subrogated to the rights of said Koonce for the money so paid by him,-and that each alternative statement is not sufficient to give complainants relief. (4) Complainants by said bill seek to be subrogated to the rights of J. S. Koonce in the mortgage executed by respondent to said Koonce, and fail to allege therein that they paid the amount due on said mortgage by agreement with either said Koonce or respondent. (5) Said bill shows upon its face that the land embraced in said mortgage and involved in this suit was the homestead of J. D Calloway, and occupied by him as such at the time of the transaction against which relief is sought. (6) Said bill seeks to enforce a specific performance between respondent and complainants, and fails to allege that respondent has made an agreement of any kind with complainants, or that complainants have any rights in any contract made by respondent with any one else which can be specifically enforced. (7) Said bill fails to show by its allegations that complainants have any interest or right in the contract made by respondent with A. L. Payne to the lands described in said bill. (8) Said bill seeks to enforce a vendor's lien for purchase money paid and improvements made upon the lands described in the bill, and fails to allege any facts that show that this respondent is liable to them for the money so paid and the improvements so made. Upon the submission of the cause upon the demurrer, the chancellor rendered a decree sustaining it. The complainants appeal from this decree, and assign the rendition thereof as error.

H. A. Pearce, for appellants.

Espy & Farmer, for appellee.

TYSON J.

The case made by the bill may be stated to be: Complainants purchased the lands, for which their tenant is sued by the respondent in an action of ejectment, from one Payne, who executed to them a deed. Calloway, the respondent, sold the lands to Payne while in the actual possession of them as his homestead, and executed a deed, which was also signed by his wife, but there was no separate and apart acknowledgment by her as required by the statute in cases of sales of the homestead. Prior to the sale to Payne, Calloway and wife had executed a valid mortgage upon these lands to one Koonce, and the consideration of the sale to Payne was the assumption by him of the payment of this mortgage debt. The consideration of the sale by Payne to the complainants was $50 in cash and the assumption by them of this mortgage debt. The respective sales of Calloway to Payne and Payne to the complainants were within a short period of time of each other,-only 30 days apart. Calloway left the lands, moving to the state of Florida, and the complainants went into the possession of the lands immediately upon their purchase in January, 1893, after paying to Koonce the mortgage debt which they assumed to pay. The bill, besides praying for general relief, contains two alternative special prayers. The first is for a decree devesting the legal title to the land out of Calloway and investing it in the complainants, and the other is to have a lien declared in their favor upon the lands for the $200 they paid Koonce in discharging the mortgage debt owing him by Calloway, the $50 paid by them to Payne, the value of the improvements made by them upon the lands, the sum of $50 as a reasonable attorney's fee incurred by them for prosecuting this suit, that the land be sold to satisfy the lien sought to be declared, and enjoining the action of ejectment. The chancellor sustained a demurrer to the bill, and this appeal is prosecuted by the complainants to review his decree.

Before, however, entering into a discussion of the legal principles governing this case and applicable to the facts as set out above, it will be well to advert to an allegation of the bill upon which great stress is laid by counsel in their briefs. It is in these words: "That, on the day of the sale by Calloway, E. L. Faulk, the father of orators, and acting for them, went to said Calloway while the latter was still on the land involved, and prior to his actual removal of his family therefrom, and told him that he had come to buy the land; that Calloway then informed him that he was too late, that he had sold the land to Payne, and had made the latter a deed to the same; that a few days later the said E. L. Faulk, relying upon the statement made by Calloway, bought the said hereinbefore described lands for your orators from the said Payne." The theory of appellee's counsel seems to be that the only purpose which this allegation can possibly serve is to assert an estoppel against their client so as to preclude him from prosecuting his ejectment suit. In this we conceive they are mistaken, which will appear from what we will say later on in this opinion. The deed made by Calloway to Payne, attempting to convey his homestead, not being acknowledged by his wife separate and apart from him, was a nullity, and conveyed no title; and its recitals, or his declarations that he had sold the lands, cannot operate as an estoppel against him to reclaim them or institute an action for their recovery. Code, § 2034, and authorities cited thereunder. While the facts alleged in the bill will not afford the relief asked for in the first special prayer relating to devesting the title to the lands out of Calloway, yet, because the other special prayer seeks to have a lien declared upon the land inconsistent with the first, this does not render the bill multifarious. It is the alternative statement of fact in a bill, when repugnant and inconsistent, and not the alternative relief prayed, that renders a bill subject to demurrer for multifariousness. Lyons v. McCurdy, 90 Ala. 497, 8 So. 52.

The material and important question involved in this case is have complainants the right, under the facts, to be subrogated to the rights of Koonce as the owner of the mortgage? It may be stated that it is practically the universal rule, governing equitable assignment by subrogation as to the persons or classes of persons in whose favor such equitable assignment exists, that equity does not admit the...