Galloway v. McLain

• Decision Date: 28 November 1901
• Citation: 31 So. 603,131 Ala. 280
• Parties: GALLOWAY v. MCLAIN. [1]
• Court: Alabama Supreme Court

31 So. 603

131 Ala. 280

GALLOWAY v. MCLAIN. ^[1]

Supreme Court of Alabama

November 28, 1901

Appeal from chancery court, Walker county; John C. Carmichael Chancellor.

Bill to cancel deeds by Hugh McLain, by his guardian, T. S. Hendon against R. Galloway, trustee. Decree for plaintiff, and defendant appeals. Reversed

Sharpe J., dissenting.

Coleman & Bankhead, for appellant.

Danks &amp Selheimer and Smith & Norvell, for appellee.

TYSON J.

If it be true, as alleged in the bill, that complainant was insane at the time he executed the two deeds to the Leiths, those deeds are void, and the legal title to the lands in controversy is still in him. And this is true notwithstanding respondent may have purchased the lands without notice of complainant's insanity. Wilkinson v. Wilkinson (Ala.) 30 So. 578; Daugherty v. Powe (Ala.) 30 So. 524.

The complainant, if insane, having the legal title, to entitle him to invoke the jurisdiction of a court of equity to cancel the various conveyances sought to be canceled, must have been in the actual possession of the lands at the time of the filing of the bill, which fact must be averred. In Thorington v. City Council of Montgomery, 82 Ala. 595, 2 So. 513, it was said by Stone, C.J.: "It is settled in this state, beyond further dispute, that, to maintain a bill to remove or prevent a cloud on title, the complainant must be in the actual possession of the lands, and the bill, to be sufficient, must aver that fact. McLean v. Presley's Adm'r, 56 Ala. 211; Baines v. Barnes, 64 Ala. 375; 3 Brick. Dig. p. 358, § 375. There is no averment in the present bill that the complainant was in possession, and it follows that, as a suit to prevent a cloud on title, it is without equity." In Plant v. Barclay, 56 Ala. 563, the same learned judge, speaking for the court, said: "A party not in possession, and claiming under a legal title, can sue at law, and in such suit test the strength of his own and that of his adversary's title. He has no standing in a court of equity.

This upon the familiar principle that there is an adequate remedy at law. * * * In such cases it is a fundamental principle that equity will not lend its aid, unless, on some ground averred and shown, the law court is incompetent to give adequate relief." See, also, Kelly v. Martin, 107 Ala. 479, 18 So. 132; Brown v. Hunter, 121 Ala 210, 25 So. 924; Belcher v. Scruggs, 125 Ala. 340, 27 So. 839. In the last case cited this court said: "There is no averment that the complainants were in possession of the land prior to and at the time of the filing of the bill. So far as its allegations show, they have a complete and adequate remedy at law. Without this averment it is wholly without equity, there being no special equity alleged showing some obstacle or impediment which would prevent or embarrass the assertion of their rights at law." We have but to apply these principles to the case in hand to show that complainant is not entitled to the relief sought. The original bill contained the averment that "orator is in actual possession of said lands now, and has always been in possession of same, and never delivered possession of any part of said lands at any time to either of the grantees in said deeds or their assignees." But by amendment this averment was stricken out, and in lieu thereof this averment was made: "That the said Hugh McLain never delivered possession of said lands or any part thereof to either of the grantees in said deed, or to their assigns, or to any of the subsequent purchasers of said lands, either at the time of the execution of said deeds or at any time thereafter." It is scarcely necessary to say that this is not the equivalent of an averment that complainant was in possession of the lands at the time of the filing of the bill. Besides, there is no evidence in the record tending to sustain this averment. Nor does the evidence afford the remotest inference that he was in the actual possession of the lands when this suit was commenced. On the contrary, the only reasonable deduction to be...