Gunn v. Hardy

• Decision Date: 26 July 1895
• Parties: GUNN v. HARDY ET UX.
• Court: Alabama Supreme Court

18 So. 284

107 Ala. 609

GUNN v. HARDY ET UX.

Supreme Court of Alabama

July 26, 1895

Appeal from chancery court, Shelby county; S. K. McSpodden Chancellor.

Bill for an injunction by James D. Hardy and his wife, Louisa Hardy, to restrain the prosecution of an ejectment suit against the husband and one Wild by James H. Gunn. From an order denying his motion to dismiss the bill and dissolve the injunction, temporarily issued, defendant appeals. Reversed.

Browne & Dryer and Browne & Leeper, for appellant.

Knox Bowie & Pelhorn, for appellees.

COLEMAN J.

In December, 1893, the appellant, Gunn, purchased at sheriff's sale the house and lot in controversy, sold under execution against J. D. Hardy. The purchaser received a deed from the sheriff, duly executed, conveying to him the interest of the said J. D. Hardy, and, upon this title instituted the statutory action of ejectment against Hardy and Wild, who were in possession, to recover the property. Pending the ejectment suit, Louisa Hardy, wife of James D Hardy, and her husband, filed the present bill in the chancery court, and prayed that the ejectment suit be enjoined. The court granted a temporary injunction in accordance with the prayer of the bill. Several grounds of demurrer were interposed to the bill, and a motion to dissolve the injunction for want of equity in the bill, and upon the denials of the answer. The court overruled the demurrer, and refused to dissolve; and from this ruling the appellant prosecuted the present appeal.

The equity of complainants' bill, and their right to relief rest upon the propositions that in 1886, prior to the rendition of the decree upon which the execution issued, by virtue of which the property was sold, James D. Hardy, the execution debtor, being then the owner of the property, and in possession of it as his homestead, and claiming it as such, conveyed the same to his wife, Louisa Hardy, by deed of conveyance, duly executed; that the property consisted of a house and lot in a town, and did not exceed in value $2,000; and that they have remained in possession of the property, and claiming it as a homestead, ever since. The legal conclusion deduced by complainants from these facts is that the deed of conveyance from the husband to the wife conveyed to her only an equity, and not the legal title, and, having only an equity, she could not defend on her title in a court of law. If we concede this contention to be true, we fail to see how the husband has any standing in a court of equity as a complainant. If the legal title remained in him, it was assertable in a court of law. But we are of opinion the contention is unsound. At the time of the execution...