Henderson Baker Lumber Co. v. Headley

• Decision Date: 09 May 1946
• Docket Number: 2 Div. 219.
• Citation: 247 Ala. 681,26 So.2d 81
• Parties: HENDERSON BAKER LBR. CO. v. HEADLEY et al.
• Court: Alabama Supreme Court

26 So.2d 81

247 Ala. 681

HENDERSON BAKER LBR. CO. v. HEADLEY et al.

2 Div. 219.

Supreme Court of Alabama

May 9, 1946

Adams & Gillmore, of Grove Hill, and Wallace H. Lindsey, Jr. of Butler, for appellant.

Howard Scott, of Chatom, and Robt. H. Smith, of Mobile, for appellee headley.

The original bill as amended is in substance as follows:

That complainant Henderson Baker Lumber Company owns and is in possession of the land particularly described, and owns and is in possession of all timber or trees situated thereon. That respondent Headley, his agents, employees or contractors have cut, removed and disposed of a large number of hardwood and pine timber or trees from said land during the past several months, and upon information and belief that a large portion of the trees so cut and removed were sold to Miller & Company who paid Headley therefor. That there are now about 625 logs that were cut and removed from said land by Headley, stacked or piled along the highway and 26 logs have been hauled to the railroad; and all of said logs are owned by and are the property of complainant. That Miller &amp Company and Headley have no right, title or interest in and to the land and timber described, and had no right to go on said land and cut and remove timber therefrom for the purposes set out, and respondent Miller & Company had no right to buy logs from Headley. That the cutting and conversion of timber from said land has been continuous and repeated; that complainant has on three occasions notified Headley not to cut and remove timber or trees from said land except that which he would deliver to complainant's mill and notwithstanding said warnings and notices, respondents have continued cutting and removing timber and trees from said land. That the actions of respondents will, if continued, result in a multiplicity of suits for recovery of damages and for conversion of said timber. That complainant is not informed of the amount of timber, trees or logs that Miller & Company has received and converted into lumber and that was cut from said land. That legal title to the land described and the timber thereon stands upon the public records of the county in the name of complainant.

GARDNER Chief Justice.

The Henderson Baker Lumber Company, a corporation, hereinafter designated as 'Baker,' filed the bill in this cause against E. K. Headley and Miller & Company, Inc. The Miller Company alone interposed demurrer to the bill as amended, which demurrer was sustained, and from that decree Baker prosecutes this appeal.

Complainant sought injunctive relief against both Headley and Miller Company from further cutting of timber on lands owned by complainant, and the removal of logs stacked along the roadway, which were in part the product of such cutting. The theory upon which the equity of the bill rests has been often stated in our decisions, to the effect that the owner of timber lands is entitled to enjoy them in the state in which they were held and to have the benefit of the increment thereon. As stated by this Court in Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278, 282: 'In this era of growing scarcity of standing timber, a tendency is toward protection of the owner by injunctive process, rather than leaving him to an action at law for money compensation.' To like effect is Tidwell v. H. H. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L.R.A.1917C, 232, and Bradley v. Rumph, 239 Ala. 603, 196 So. 500.

As to defendant Headley, who was engaged in cutting the timber, removing and selling it contrary to complainant's instructions, the equity of the bill under these authorities is clear enough. As we have indicated Headley interposed no demurrer, and we are concerned here only with that interposed by the Miller Company. Counsel for appellant, in arguing the Miller Company demurrer, appear to assume that the averments as to defendant Headley are identical or similar to those concerning the Miller Company. But we do not so construe the bill. Reduced to the last analysis, the averment as to the Miller Company is that it purchased some of the timber from Headley. There are some logs stacked along the roadway, but the Miller Company is in no manner connected with these logs, had no participation in the cutting of the timber, and no intention to disturb the logs.

As observed in numerous cases, among the more recent, Penny v. Penny, Ala.Sup., 24 So.2d 912, a bill in equity must set forth every material averment of fact necessary to the right of recovery. Omitting any vague inference to the contrary, as we have above indicated, as to the Miller Company the bill merely discloses a purchase of some of the timber that was cut from the land--that and nothing more.

We are unable to see any impediment in the way of an action of trover if complainant is entitled to relief in this respect. The inadequacy of the remedy at law is the foundation of equity jurisdiction, and the bill as to the Miller Company fails to disclose any reason why an action at law for damages would not adequately compensate complainant. White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L.R.A. 199, 54 Am.St.Rep. 159.

Perhaps as to defendant Miller the pleader intended to allege more than here indicated. But however that may be, the averments as to the Miller Company, as we construe the bill, fail to make out a case for equitable relief and is without equity, and upon this theory the demurrer was properly sustained.

True, the trial court's ruling appears to have been rested upon the failure of the bill to show notice to the Miller Company as to any lack of authority in Headley to sell him the lumber, and much of the argument is directed to that question. The conclusion we have reached renders unnecessary any elaborate consideration of this argument.

Of course, it is generally recognized that complainant in his initial pleading need not anticipate defensive matter. 30 C.J.S., Equity, § 212, p. 668; Town of Frisco City v. Green, 244 Ala. 176, 12 So.2d 409; National Southern Products Corp. v. City of Tuscaloosa, 246 Ala. 316, 20 So.2d 329; First National Bank v. Sproull, 105 Ala. 275, 16 So. 879.

And we might add that it is well settled that the question of bona fide purchaser is defensive matter. Barton v. Barton, 75 Ala. 400.

In the Barton case the rule is declared, that upon proof that the purchase was made in good faith and the purchase price paid, the burden of proof shifts to the opposing party to show that before the payment the purchaser had actual or constructive notice of such matters as would have defeated his right to the property. This well-understood rule has been recognized in subsequent decisions. Patton v. Darden, 227 Ala. 129, 148 So. 806; Taylor v. Burgett, 207 Ala. 54, 91 So. 786; Johnston v. Harsh, 207 Ala. 524, 93 So. 451; Marsh v. Elba Bank & Trust Co., 207 Ala. 553, 93 So. 604.

We are inclined to the view that Sec. 218(4), Title 8, Code 1940, Cum.Pocket Part, is not to be properly construed as affecting this settled rule, and we may add that the bill in the instant case, upon its face in this regard, made out a prima facie case for the Miller Company; i.e., purchase in good faith and payment of the purchase price.

But as we view it, this question of notice is not here involved. The bill distinctly alleges that the complainant was the sole owner of these logs and that Headley's only authority was to cut the logs and bring them to complainant's mill. In discussing Sec. 29, Title 57, Code 1940, this Court in the recent case of Hyatt v. Reynolds, 245 Ala. 411, 17 So.2d 413, calls attention to the fact that the foregoing section is but a statement of the elementary general rule that no one can transfer a better title than he himself has, with, of course, certain well-known exceptions, citing Bennett & Co. v. Brooks, 146 Ala. 490, 41 So. 149, 150, where the rule was quoted as follows: 'One who, though acting in good faith, purchases a chattel from a person in possession, but without title or authority or indicia of authority, from the true owner to sell, acquires as against the true owner, no title, and the latter may maintain trover for its conversion.'

As we have previously observed, the question now discussed is not necessary for decision in view of our conclusion that the bill is without equity. But it is proper to make reference thereto in view of the fact that the trial court interposed a penalty upon the complainant by a taxation of costs upon the theory the complainant's bill as amended did not meet the views of the court upon consideration of the demurrer to the original bill on this question of notice. Complainant has amended his bill by alleging that the deed to the property was on public record and that possession was in complainant. But as we have indicated, upon the averments of the bill no notice to the Miller Company was required to be alleged. We think it clear enough that no question of penalty was here involved and that the decree should be modified so as to eliminate that feature. As so modified, the decree will be here affirmed.

Modified and affirmed.

Cross-Bill

Defendant Headley filed answer and cross-bill. Complainant's demurrer to the cross-bill was overruled, and from that decree an appeal is likewise here prosecuted.

In defendant Headley's cross-bill he denied ownership in complainant of the real estate here involved claiming himself to be the owner. There is no denial, however, that the deeds to the property were made to complainant, and that is where the legal title resides. His claim of ownership rests entirely upon what is shown to be an oral agreement.

In the cross-bill Headley claims the right to go upon the land and cut the timber by virtue of his ownership and the right to sell to...