Harrison v. Harrison

• Decision Date: 14 June 1917
• Docket Number: 5 Div. 671
• Citation: 76 So. 295,200 Ala. 379
• Parties: HARRISON v. HARRISON.
• Court: Alabama Supreme Court

76 So. 295

200 Ala. 379

HARRISON v. HARRISON.

5 Div. 671

Supreme Court of Alabama

June 14, 1917

Appeal from Circuit Court, Tallapoosa County; Lum Duke, Judge.

Action by Corine Harrison against C.E. Harrison. Judgment for plaintiff, and defendant appeals. Affirmed.

Bulger & Rylance, of Dadeville, and W.R. Whatley, of Alexander City for appellant.

Geo. A Sorrell, of Alexander City, for appellee.

McCLELLAN J.

This appeal involves the action of ejectment particularly referred to in the litigation, between the same parties and concerning the same land, in Harrison v. Harrison, 73 So 454-456. It is the action of ejectment, the prosecution of which in the court of law was enjoined, pending the hearing and disposition of the bill for specific performance considered and determined in Harrison v. Harrison, supra. In that bill, upon the averments of which the temporary injunctions issued, it was averred:

"Orators charge and aver that the equitable title to said land is in orators, and that they are entitled as a matter of equity to hold, own, and occupy the same; that the legal title to said land is in the plaintiffs to said suit in the circuit court; that orator is unable to defend against said legal title, and that the intervention of the court of equity is necessary, that he may retain his rightful possession to said land, and that it is right and equitable that they have this honorable chancery court to grant an injunction in their favor and against all of the plaintiffs in said suit pending in said circuit court in Alexander City, and that they be enjoined from further prosecuting said suit in said circuit court; that orators may have the opportunity to have this honorable court of chancery to pass upon their rights in this case."

Upon the affirmance by this court of the decree of the chancery court in that cause, whereby relief was denied, the injunction was dissolved and the bill dismissed. The trial of the ejectment suit came on; and the defendants sought to assert, in defeat of the legal title admitted in the quoted paragraph of the bill, title by adverse possession of 10 years or more. The court held, in effect, that they were concluded--estopped--by the matters of assertion and admission presented and present in the cause in equity (73 So. 454-456), according to the plaintiffs in the ejectment suit the possession of the legal title at the time the bill in equity was filed.

The effort to defeat the legal title of the plaintiffs in the action of ejectment through the assertion of adverse possession, perfected by the date the bill in equity was filed, was, necessarily, a contradiction of the confessed then investment of the legal title in the plaintiffs in the ejectment suit at the time the bill in equity was filed. In other words, the equity of the...