Love v. Sims-Morgan Lumber Co.
| Decision Date | 22 November 1934 |
| Docket Number | 3 Div. 112. |
| Citation | 158 So. 180,229 Ala. 499 |
| Parties | LOVE et al. v. SIMS-MORGAN LUMBER CO. |
| Court | Alabama Supreme Court |
Rehearing Denied Jan. 3, 1935.
Appeal from Circuit Court, Autauga County; F. Loyd Tate, Judge.
Bill for accounting, etc., by John Henry Love, James Love, Jessie Butler, J. E. Love, J. Walter Love, and Jack Love against Bessie Sharp, Alice Davis, and the Sims-Morgan Lumber Company. From a decree dismissing the bill as to the last-named respondent, complainants appeal.
Reversed rendered, and remanded.
P. B Traweek, of Elba, for appellants.
H. E Gipson, of Prattville, for appellee.
This is a bill by the complainants as tenants in common for discovery and relief in respect to certain real estate located in Autauga County, against their alleged cotenants, seeking a sale for division, an accounting for waste, and to enforce rescission and cancellation of a conveyance signed by some of the complainants, purporting to convey timber rights to one of the respondents.
After demurrer filed by the defendant Sims-Morgan Lumber Company to the original bill was sustained, the bill was amended, and thereupon the demurrer was refiled, taking the point, among others, that the bill was without equity and was also multifarious, and was overruled.
Thereupon the Sims-Morgan Lumber Company filed its answer, incorporating therein grounds of demurrer in substance the same as in the former demurrer. The other defendants suffered a decree pro confesso to be taken against them.
Testimony was taken by complainants by depositions, and the cause was submitted for final decree on the demurrer incorporated in the answer and the pleadings and proof, resulting in a decree for complainants against the defendants Bessie Sharp and Alice Davis, and dismissing the bill as to Sims-Morgan Lumber Company. The appeal is by the complainants from this decree, and the assignments of error relate to the dismissal of the bill as to the Sims-Morgan Lumber Company.
The only contention made by the appellees to uphold the decree and justify its dismissal is that the bill is multifarious. We are of opinion that this question is not presented on this record. While there was a submission on the demurrers incorporated in the answer, no reference is made to the demurrers in the decree, and, in the face of the fact that the court had previously overruled a like demurrer to the bill as amended, it cannot be assumed that the decree was rested on such ground. The question of multifariousness can only be raised by demurrer. Code 1923, § 6526; Sims Chancery Practice, § 262. Moreover, it appears that the relief sought grows "out of the same subject-matter" and "property between the same parties." Section 6526, Code, supra.
The Sims-Morgan Lumber Company offered no testimony other than the depositions of two of the complainants, James E. and J. W. Love. The evidence is without dispute that the complainants and the respondents Sharp and Davis owned the real estate described in the bill, holding the fee-simple title thereto, each owning a one-eighth interest; that said lands were covered with a valuable growth of merchantable timber prior to the time it was cut over by the defendant Sims-Morgan Lumber Company, who operated a mill in the vicinity of said lands; that said defendant, acting by and through its agent, Claude Durden, undertook to procure separate conveyances from each of said cotenants to the timber rights in said property, and did, in September, 1929, procure such conveyances from the defendants Sharp and Davis, who accepted the checks tendered as their part of the purchase price and collected and retained the proceeds thereof. Said conveyances obtained from said Sharp and Davis, as the evidence goes to show, conveyed to Sims-Morgan Lumber Company, "their heirs and assigns, all merchantable timber measuring, or which during the life of this contract will measure, eight inches and up, twelve inches from the ground standing, lying or being" on the lands described in the bill, with the "right to enter upon and across the above described land with their wagons, teams, trucks and employees for the purpose of cutting and removing said timber or any other adjacent timber and shall have all necessary rights of way over and across said lands for hauling timber or lumber, with the right to erect saw mills and other necessary buildings for such operations together with the right to maintain lumber yards; also the right to build roads for trucks and wagons and to cut such underbrush or saplings as may be necessary for the above named purposes," with the right to remove such buildings and improvements within the life of the contract. (Italics supplied.)
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