Gulf Red Cedar Co. v. Crenshaw

• Decision Date: 30 June 1903
• Citation: 35 So. 50,138 Ala. 134
• Parties: GULF RED CEDAR CO. ET AL. v. CRENSHAW ET AL.
• Court: Alabama Supreme Court

35 So. 50

138 Ala. 134

GULF RED CEDAR CO. ET AL. v. CRENSHAW ET AL.

Supreme Court of Alabama

June 30, 1903

Appeal from Chancery Court, Butler County; W. L. Parks, Chancellor.

Suit by Louisa Crenshaw and others against the Gulf Red Cedar Company and others. From a decree overruling demurrers to the bill defendants appeal. Affirmed.

The averments of the bill, as originally filed, are set forth at length in the report of the case on its former appeal, as found in 131 Ala. 117, 30 So. 466, 90 Am. St. Rep. 22, and special reference is here made to the report therein contained. Upon the remanding of the case the bill was amended in two parts. These amendments are sufficiently shown in the opinion. To the bill as amended the defendants demurred upon many grounds, which may be summarized as follows: "(1) That it plainly appears in and by said original bill of complaint, as amended, that the complainants have a plain and adequate remedy at law. (2) That it plainly appears in and by said original bill of complaint, as amended, that there is a misjoinder of causes of action stated in said bill of complaint as amended. (3) That it plainly appears in and by said bill of complaint, as amended that there is a misjoinder of parties complainant in said bill as amended. (4) That the rights of complainants sought to be enforced in and by said original bill of complaint, as amended, are stale demands, and should not be enforced in a court of equity. (5) That the causes of action stated in the complainants' bill of complaint, as amended, are barred by the statute of limitations of six years. (6) That the causes of action stated in the complainants' bill of complaint, as amended, are barred by the statute of limitations of ten years. (7) That it plainly appears in and by said bill of complaint as amended that an action of trespass in a court of law is a plain and adequate remedy for complainants concerning the matters set forth in said bill of complaint as amended. (8) That it plainly appears in and by said bill of complaint, as amended, that the causes of action set forth in said bill of complaint, as amended, for cutting timber on the 640 acres of land described in contract with Jos. Steiner & Sons present a separate and distinct cause of action for the cutting of timber on the residue of the 2,336 acres of land described in the bill of complaint, as amended and that the causes of action set forth in said bill of complaint, as amended, are separate and distinct, and misjoined in said bill. (9) That it doth plainly appear in and by said bill of complaint, as amended, that this respondent is a corporation under the laws of Alabama, and as such has the right to plead, answer, or demur to said bill of complaint, as amended, and to answer the several interrogatories therein contained, as other domestic corporations under the Constitution and laws of Alabama are thereunto permitted; and in and by said bill of complaint, as amended, the complainants seek to have their answer made by W. H. Parrish, or by Geo. H. Scott, agent, and there is no power under the laws of Alabama given to complainants to thus limit the power of the respondent in making its answer. (10) That it appears in and by said bill of complaint, as amended that Geo. H. Scott is an employé of the Gulf Red Cedar Company, and the complainants seek by their said bill of complaint to have this respondent bound by an answer to be made by said employé. (11) The said bill of complaint, in and by its averments, fails to allege that W. H. Parrish and G. H. Scott are the persons authorized to answer the interrogatories propounded in said bill as amended. (12) The said bill, as amended, in and by its averments makes W. H. Parrish and George H. Scott parties defendant for the purpose of answering the same in behalf of the Gulf Red Cedar Company, but fails to aver that said Parrish and Scott, or either of them, are authorized to make such answer, and fails to aver that the matters alleged in said bill and inquired about in the interrogatories attached to said bill are within the knowledge of said Scott and Parrish, or either of them." On the submission of the cause and the bill as amended and the demurrers thereto, the chancellor rendered a decree overruling said demurrers.

C. E. Hamilton and D. M. Powell, for appellant.

J. M. Chilton, for appellees.

TYSON J.

The opinion upon a former appeal in this case is reported in 131 Ala. 117, 30 So. 466, 90 Am. St. Rep. 22. Upon the return of the case to the chancery court, the bill was amended in two particulars only--one, to eliminate the aspect founded on the claim that the power reserved by the grantor, Thomas C. Crenshaw, did not extend to a sale of timber separately from the land, which we decided was an inadmissible construction of the particular deed under consideration; but this, of course, did not affect the right to relief under the other aspect of the bill, as to which we affirmed the decree overruling the demurrers. The other amendment simply altered the allegation as to the age of the youngest child of Thomas C. Crenshaw at the date of the sale or lease to the Steiners; the amendment stating that the youngest child was then of age, whereas the original bill only averred that the youngest child was of age when the extension agreement was made. It is thus evident that the bill is the identical one which on the former appeal we held to be unobjectionable.

1. The first of the present demurrers is that the plaintiffs below have a plain, adequate, and complete remedy at law. There is no doubt that the defendants, no matter what may be the facts in reference to whether the interlineation in the deed of Thomas C. Crenshaw, changing the limit of the power reserved from the arrival of the youngest child to the age of 21 years to the life of the grantor, was before or after delivery, and no matter whether the youngest child became of age before or after the conveyance to the Steiners, were tenants in common with the complainants of the timber upon the lands. Whether the rights of the parties were greater or less will depend of course, upon those facts. The question, then, is, do the circumstances disclosed in the bill make a case within the jurisdiction of the chancery court, or must the complainants, each for himself, bring a separate suit at law, and settle before a jury the liability of the defendants for the share of each tree belonging to him or her, converted by the defendants during the long course of years they have been using the cedar timber? Courts are organized to administer justice. The law is not attached to, nor does it shrink from, any particular formula in performing this duty. There are ordinarily two tribunals for the redress of wrongs--one, at law, before a jury, when the remedy there is plain, adequate and complete; the other, in chancery, when there is either no remedy, or one not plain, adequate, and complete in the law court. Our statutes have provided no special remedy for suits between tenants in common. We have not even adopted the statute of 4 & 5 Anne, correcting the defect of the common law in this regard. We can see from that statute, which allows the action of account to be brought by one joint tenant or tenant in common against another for more than his share of actual receipts of profits, and not for mere use and occupation, what was the defect of the common law. Indeed, the common law afforded no remedy in such case, unless one tenant made the other his bailiff. Freeman on Co-Tenancy, §§ 269, 270; Gayle v. Johnston, 80 Ala. 400. There was always a right to hold a co-tenant to account in equity. Speaking on this point, Mr. Story, in his work on Equity Jurisprudence, says: "Although there was no remedy at the common law, yet a bill in equity might be maintained for an account against the personal representatives of guardians, bailiffs, and receivers; and such was the usual remedy prior to the remedial statute of Anne. And no action of account lay at the common law against wrongdoers; or by one joint tenant or tenant in common, or his executors or administrators, against the other as bailiff, for receiving more than his share, or against his executors or administrators, unless there was some special contract between them whereby the one made the other his bailiff; for the relation itself was held not to create any privity of contract by operation of law." In 11 Ency. Pl. & Prac., in the article on "Joint Tenants and Tenants in Common," the author, after stating the rule as we have stated it with reference to the liability at common law of one joint tenant or tenant in common to another for rents and profits, says this (page 769): "The common-law rule, as hereinbefore shown, not permitting one joint tenant or tenant in common to have an action ex contractu against his companion unless as bailiff, his only remedy was by bill in equity; but the change in the rule, giving an action, did not abridge the remedy in equity in proper cases; and, where a case is presented involving a variety of adjustments, limitations,...