Garrett v. Brewton

• Decision Date: 07 March 1946
• Docket Number: 7 Div. 847.
• Citation: 247 Ala. 490,25 So.2d 158
• Parties: GARRETT et al. v. BREWTON et al.
• Court: Alabama Supreme Court

25 So.2d 158

247 Ala. 490

GARRETT et al. v. BREWTON et al.

7 Div. 847.

Supreme Court of Alabama

March 7, 1946

Motley & Motley, of Gadsden, for appellants.

Roy D. McCord, of Gadsden, for appellees.

The bill alleges, in substance, that complainants are sole and absolute owners of the lands described, the same having been the sole and absolute property of one George F. Brewton who died in 1936, leaving no last will, and leaving surviving him a widow, Jannie Brewton. George F. Brewton had no children and his heirs at law are the complainants herein. The widow attempted to have said lands set apart to her as a homestead and in 1937 a decree was rendered in the Circuit Court of Etowah County, in equity, by which the lands were decreed to the widow for the term of her life with remainder at her death to these complainants. The widow died in 1943 whereupon the property became that of complainants absolutely. Respondents were tenants of Jannie Brewton and have occupied the property since her death, but have failed and refused to pay rent to complainants, or to acknowledge complainants as their landlord or to surrender possession to them. Said Jannie Brewton, after the death of her husband, made and executed a mortgage on said lands to one Green, who transferred same to respondents, said mortgage being foreclosed and respondents becoming the purchasers. Respondents are claiming an interest in or title to the land by reason of said mortgage foreclosure. It is averred that the mortgage and its foreclosure are void and of no effect, by reason of the fact that Jannie Brewton owned only a life estate in the lands, and the mortgage became worthless immediately upon her death. It is averred that said mortgage and its foreclosure constitute a cloud upon complainants' title and stand in the way of their immediate possession of the lands. It is averred that respondents have not paid any rent for use and occupation of said land, are enjoying the possession thereof and have made large crops which they are now engaged in fraudulently disposing of, thus denying complainants their right to rents; that respondents do not have any property out of which execution can be made, and unless the court assumes jurisdiction and appoints a receiver, complainants will be irrevocably injured.

It is prayed that respondents be decreed to have no valid or enforceable claim or title to the lands; that whatever documents they may have, including said mortgage and foreclosure, be cancelled as a cloud upon complainants' title; that judgment be rendered against respondents for rents, and an accounting therefor be required of them; that respondents be required to surrender possession of said lands to complainants; that a receiver be appointed to take charge and control of rents due or to become due, under orders and direction of the court, and for general relief.

GARDNER Chief Justice.

The appeal is from a decree overruling a demurrer to the bill of complaint. It was averred in the bill that complainants are the 'sole and absolute owners' of the real estate described therein, and that the respondents are in the possession of said property. Complainants, therefore, are in the position of one relying on a legal title who seeks to recover possession of land adversely held. The remedy at law is adequate, and the case does not present one for the jurisdiction of a court of equity. 21 C.J. p. 62. See also 30 C.J.S., Equity, § 29.

'A court of equity will not entertain a bill to remove a cloud from the title to land...