Johnson v. Green, 6 Div. 573

• Decision Date: 30 June 1953
• Docket Number: 6 Div. 573
• Parties: JOHNSON et al. v. GREEN.
• Court: Alabama Supreme Court

Page 768

66 So.2d 768

259 Ala. 511

JOHNSON et al. v. GREEN.

6 Div. 573.

Supreme Court of Alabama.

June 30, 1953.

Rehearing Denied Aug. 11, 1953.

J. E. Bains, Oneonta, for appellants.

Johnson & Randall, Oneonta, for appellee.

MERRILL, Justice.

The appellants, Eulus Johnson and wife, filed a statutory action in the nature of ejectment against Lonnie Green, appellee, in the Circuit Court of Blount County, Alabama, to recover possession of the NW 1/4 of the NE 1/4 of Section 25, Township 12 South of Range 2 West. On motion of the defendant the case was transferred to the equity division of the circuit court. There was no contest of the motion to transfer.

Lonnie Green filed his bill of complaint within the time prescribed by law and later amended it. The Johnsons filed their answer and cross-bill. After a demurrer was sustained to the cross-bill they amended it and a demurrer was again interposed. On the 17th day of February 1953 the court rendered a decree sustaining the demurrer to the cross-bill as amended, and from this interlocutory decree Eulus Johnson and his wife have appealed.

The record has been abbreviated by agreement of counsel and for that reason all of the pleadings are not before us on this appeal.

The effect of Lonnie Green's complaint is that the Johnsons have a deed calling for the NW 1/4 of the NE 1/4 of Section 25, Township 12, Range 2 West, Blount County; that actually the deed should have conveyed all the land in said NW 1/4 of the NE 1/4 of Section 25, lying west of the hollow and south of the old Bangor road, and that he (Lonnie Green) was entitled to all the property in said forty that lies east of the hollow and north of the old Bangor road, and he prayed that the court would enter a decree correcting and reforming the deed, a copy of which was made an exhibit to the bill; and that the court decree that certain named respondents, including the Johnsons, have no right, title or interest in that portion of the forty acres which he (Lonnie Green) claims.

The Johnsons filed their answer and cross-bill denying Green's claim to any of the forty acres and asked for practically the same relief that Green had prayed for. A demurrer was filed to the cross-bill and sustained. Thereupon the Johnsons amended their cross-bill by adding the following:

'13. That said Lonnie Green entered upon, before the commencement of this suit, and unlawfully withholds and detains lands belonging to these respondents and cross complainants in the NW 1/4 of the NE 1/4 of Section 25 in Township 12 South of Range 2 West, Blount County, Alabama,'

and added the following to their prayer:

'That the register of this court be directed to determine by reference a reasonable rental value for the lands of these respondents and cross complainants so withheld and detained by the complainant and cross respondent, Lonnie Green, and that they, the respondents and cross complainants, Eulus Johnson and Gerstel Johnson, have judgment for such amount.'

Lonnie Green again demurred to the cross-bill as a whole and also to the two aspects of the cross-bill. To that aspect of the cross-bill which seeks to recover a part of the NW 1/4 of the NE 1/4 of said Section 25, one of the grounds assigned was 'because the cross complainants are entitled to all relief with reference to said property in their original answer to the bill of complaint.' This ground of demurrer was well taken. We quote from Propst v. Brown, 250 Ala. 282, 34 So.2d 497, 498:

'Clearly the cross-bill insofar as it merely controverted the facts alleged in the original bill or sought to raise the question of the right to relief, issuable under the allegations of the original bill, was without equity, since complete relief was obtainable under the original bill. Thurlow v. Berry, 247 Ala. 631, 638(12), 25 So.2d 726; Wood v. Amos, 236 Ala. 477, 183 So. 639; Becker Roofing Co. v. Meharg, 223 Ala. 163, 134 So. 864; Emens v. Stephens, 233 Ala. 295(1), 172 So. 95; 8 Ala.Dig. Equity, k196, p. 517.'

To that sepect of the cross-bill which seeks to recover rental for the alleged property, the cross-respondents assign four grounds: '(1) that there is no equity in said aspect of the cross-bill. (2) Because the cross-complainants are entitled to all the relief to which the law gives them a right to recover under the bill and answer; and (3) Because the averments thereof are too indefinite and uncertain.' The fourth ground of the demurrer is unintelligible.

The first ground assigned was not well taken. In the case of Gadsden Bowling Center v. Frank, 249 Ala. 435, 31 So.2d 648, 650, 172 A.L.R. 1430, the Court said:

'We need not stop to consider whether the cross-bill contains equity since inadequacy of legal remedies is not an essential element of a cross-bill. It is sufficient if the subject matter of the cross-bill relates to the subject matter of the original bill and it does in this case. Ashe-Carson Co. v. Bonifay, 147 Ala. 376, 41 So. 816; Smith v. Maya Corp., 227 Ala. 6, 148 So. 621.'

The second ground of demurrer was not well taken because it was averred that Lonnie Green was unlawfully withholding and detaining lands belonging to the Johnsons, and the prayer requested a reference to determine the rental value and to give the cross-respondents a judgment for the same.

It is well settled that affirmative relief can be granted only on a cross-bill Marshall v. Rogers, 230 Ala. 305, 160 So. 865; 8 Ala.Dig., Equity, k 196.

A cross-bill is demurrable to the extent it seeks the same relief as the original bill. Thurlow v. Berry, 247 Ala. 631, 25 So.2d 726.

The amendment to the cross-bill in the instant case asks for affirmative relief which the cross-complainants would not have been entitled to under their answer to the original bill as amended, but which could be granted in equity upon proper presentation in a cross-bill even though the incidental relief might also be awarded at law. In Bowden v. Turner, 243 Ala. 182, 8 So.2d 849, 851, the Court said:

'The equity court has authority to determine all the questions here involved. The rule is general and well recognized that when an equitable cause is presented, the court will, after granting the equitable relief, proceed to do complete...