McCary v. Crumpton
| Decision Date | 10 November 1955 |
| Docket Number | 5 Div. 629 |
| Citation | 263 Ala. 576,83 So.2d 309 |
| Parties | Daniel McCARY v. Blossom CURMPTON. |
| Court | Alabama Supreme Court |
Glen T. Bashore, Clanton, for appellant.
Omar L. Reynolds and Reynolds & Reynolds, Clanton, for appellee.
Daniel McCary (appellant) brought an action against Blossom Crumpton (appellee) in the nature of an action in ejectment to recover certain described real estate lying in Chilton County, Alabama. Subsequently Blossom Crumpton made a motion asking the court to transfer the cause to the equity side of the docket. The motion was granted and thereupon Blossom Crumpton filed her original bill of complaint on the equity side of the docket. Daniel McCary demurred to the original bill of complaint.
The demurrer was overruled by decree of the court entered May 27, 1954. Daniel McCary thereupon filed an answer to the original bill of complaint. It is shown by stipulation of counsel that some testimony was taken on the issues made by the original bill and the answer. On August 21, 1954, after such answer was filed and after such testimony was taken, the complainant filed an amendment to her bill of complaint. There was a demurrer by Daniel McCary to the bill of complaint as amended and to certain aspects thereof to which we shall later refer. The court overruled the demurrer. The appeal here is from this last mentioned decree overruling the demurrer to the bill of complaint as amended.
The allegations of the original bill, in addition to showing the names, ages and residences of the parties, the institution of the ejectment suit and the removal of the cuase from the law side of the docket to the equity side of the docket, may be summarized as follows. Moses McCary, now deceased, made three promissory notes to Alabama Mineral Land Company for $80 each payable, respectively, on November 15, 1915, November 15, 1916 and November 15, 1917. Moses McCary died intestate in 1930 and Daniel McCary is his sole heir. The aforesaid notes were secured by a mortgage on the lands involved in this suit made by Moses McCary to Alabama Mineral Land Company on July 24, 1914. On February 2, 1918, the aforesaid mortgage and the indebtedness secured thereby was transferred and assigned by Alabama Mineral Land Company to T. U. Crumpton and Company, for a valuable consideration.
Copies of the aforesaid notes and mortgage are attached to the original bill of complaint marked exhibits thereto and made a part thereof.
The bill further alleges that the indebtedness evidenced by the aforesaid notes and secured by the aforesaid mortgage has not been paid and is still due and owing and that payment thereof was in default at the time of the filing of the suit, that during the year 1926 T. U. Crumpton Company, a corporation, was dissolved and shortly after the dissolution thereof the notes and mortgage which have been described were transferred and assigned in the course of liquidation of the affairs of such corporation to the complainant, Blossom Crumpton, who was a stockholder in the corporation, and that she is now the owner of the mortgage and the indebtendess evidenced by the notes.
It is further alleged that Blossom Crumpton is in possession of the lands and for more than twenty years prior to the filing of the suit at law in this cause, has been in the actual, adverse possession of the lands and has held the same continuously and uninterruptedly, openly and exclusively claiming to own the same as her own.
It is further alleged 'by way of alternative' that if Blossom Crumpton does not have a lien on said land by virtue of the notes and mortgage she then claims title to the land by virtue of the fact that for more than twenty years she has held the actual, adverse, continuous and uninterrupted open and exclusive possession of the lands, claiming to own the same and that she has assessed and paid the taxes thereon as her own. The prayer of the original bill is that the court will make and enter a decree ascertaining and determining the amount of indebtedness due by and under the notes and will declare a lien upon the land to secure such indebtedness and will order and direct a sale of the lands for the satisfaction of the debt. The prayer is also for such other, further, different and general relief as in equity and good conscience the complainant may be entitled to.
The allegations of the amendment to the original bill show in substance that complainant is the owner and in peaceable possession of the lands involved in the litigation and that Daniel McCary claims or is reputed to claim some right, title, interest or incumbrance in and upon the land and further that no suit 'is pending to enforce or test the validity of the complainant's title, claim or incumbrance upon the land.' The bill as amended further alleges that the respondent be required to specify such title, claim or interest or incumbrance upon the land as he may have and prays that the court will decree that the complainant has title to the lands and the respondent no right, title or interest therein.
It appears to be the position of the appellee that this court should dismiss the appeal ex mero motu on the theory that this court has no jurisdiction of the appeal. It is argued that when the demurrer to the original bill was overruled and no appeal from such ruling was taken as provided by § 755, Title 7, Code of 1940, but on the contrary the respondent answered the bill and testimony was taken in the cause and the complainant then filed an amendment to the original bill to which demurrer was overruled, that the respondent should have no right of appeal from the decree overruling the demurrer to the bill as amended on the theory that the amendment added no new parties, no new issue or no new theory of recovery in the controversy. We cannot agree with this position.
Section 755, Title 7, Code of 1940, provides for an appeal from any decree sustaining or overruling demurrer to a bill in equity to be taken within 30 days after the rendition thereof. It has been held that the word 'bill' in the statute is used in a generic sense and includes an amended bill. Shields v. Hightower, 216 Ala. 224, 112 So. 834.
It is clear to us that the appellant had the right to take the appeal which is now before us and that we do have jurisdiction of the appeal and, accordingly, we will not dismiss the appeal.
In order to reach a proper conclusion in this case it would be well to analyze the bill as to its various aspects and the demurrers directed, respectively, thereto. We should also keep in mind that on appeal from a decree overruling a demurrer to a bill in equity the appellant cannot assign as error an interlocutory decree...
To continue reading
Request your trial
-
Smith v. Wilder
...addressed to the amended bill as a whole which have been argued in brief. Rowe v. Rowe, 256 Ala. 491, 55 So.2d 749; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309; Green v. Mutual Steel Co., 268 Ala. 648, 108 So.2d 837. It is contended that the grounds of the demurrers taking the point that......
-
Gordon v. Central Park Little Boys League
...was taken. Foley v. Leva, 101 Ala. 395, 13 So. 747; Kyser v. American Surety Co. of New York, 213 Ala. 614, 105 So. 689; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309. On this appeal we cannot review the order overruling the motion to dissolve the temporary Assignment of Error 15 asserts t......
-
Tri-State Corp. v. State ex rel. Gallion
...256 Ala. 491, 55 So.2d 749; Williamson v. Burks, 262 Ala. 442, 79 So.2d 42; Adams v. Woods, 263 Ala. 381, 82 So.2d 531; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309; Smith v. Wilder, 270 Ala. 637, 120 So.2d 871. The general decree overruling demurrer will be upheld by this Court on appeal......
-
Haavik v. Farnell
...v. Woods, 263 Ala. 381, 82 So.2d 531; Marshall County Gas District v. City of Albertville, 263 Ala. 601, 83 So.2d 299; McCary v. Crumpton, 263 Ala. 576, 83 So.2d 309. The averments of the bill as they relate to the acquisition of the deed to Lot 20 are substantially as follows: Complainant ......