Merritt v. Alabama Pyrites Co.

• Decision Date: 30 November 1905
• Citation: 40 So. 1028,145 Ala. 252
• Parties: MERRITT v. ALABAMA PYRITES CO. ET AL.[1] ALABAMA PYRITES CO. ET AL. v. MERRITT.
• Court: Alabama Supreme Court

40 So. 1028

145 Ala. 252

MERRITT v. ALABAMA PYRITES CO. ET AL.^[1]

ALABAMA PYRITES CO. ET AL. v. MERRITT.

Supreme Court of Alabama

November 30, 1905

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

"To be officially reported."

Suit by Fisher H. Merritt, as administrator of the estate of Lucy G Merritt, deceased, against the Alabama Pyrites Company and others. From a decree dismissing the bill as to certain defendants, complainant appeals, and defendants take a cross-appeal from the final decree for complainant. Decree corrected, and bill dismissed without prejudice.

Gunter & Gunter, for complainant. Whitson & Dryer, J. M. Falkner and George W. Jones, for defendants.

DENSON J.

The bill was filed by Fisher H. Merritt, as the administrator of the estate of Lucy G. Merritt, deceased, on the 22d day of June, 1904, in favor of himself as such administrator and of all stockholders in the corporation that was known as the Montgomery Mining & Manufacturing Company who might come in and make themselves parties complainant to the bill and contribute to the expenses of conducting the suit. The facts of the case are briefly these: On the 21st day of February 1860, the Montgomery Mining & Manufacturing Company was incorporated by an act of the Legislature of Alabama. The capital stock of the corporation was fixed at $100,000 and was divided into shares of $100 each. The names of all the stockholders are set out, with the amount of stock owned by each of them. F. M. Gilmer, one of the stockholders transferred to the complainant's intestate the stock alleged to have been owned by her and to be the property of her estate. All of the stockholders, 12 in number, are long since dead, there being administration on the estates of only 3 of them. Charles Teasley is the administrator of the estate of William Taylor, deceased, and of William Gesner, deceased, and the complainant is the administrator of F. M. Gilmer, deceased. On the organization of the Montgomery Mining & Manufacturing Company it became the owner by sale and assignment of all of the property of the corporation known as the Montgomery Mining Company, whose stockholders were the same persons as the stockholders in the Montgomery Mining & Manufacturing Company. Upon said sale and assignment the Montgomery Mining Company ceased to do business. A part of the property sold and assigned to the Montgomery Mining & Manufacturing Company consisted of a large body of land in Clay county, Ala. The Montgomery Mining & Manufacturing Company by the ravages of the war between the states was so crippled that "some time prior to 1875 it ceased to do business, abandoned its organization, and all of the stockholders therein have been dead for many years." The said corporation continued in possession, up to the time of its dissolution and cessation of business, of its property, including the lands in Clay county. In the language of the bill: "The Alabama Pyrites Company, a corporation doing business in Clay county, Alabama, and one Percival H. Smith, and one A. O. Smith, claim some interest in said land; but whatever interest they have complainant avers is inferior and subordinate to the claim and right and title of the said Montgomery Mining & Manufacturing Company and the stockholders thereof represented in this suit by orator, who as the administrator of the said Lucy Merritt, deceased, is a stockholder in said last-mentioned company." The Alabama Pyrites Company, a corporation doing business in Clay county, Ala., Percival H. Smith and A. O. Smith, resident citizens of Clay county, Ala., and Charles B. Teasley, as the administrator ad litem of the estate of F. M. Gilmer, deceased, are made parties defendant to the bill. All of the officers of said corporation are long since dead. All the parties defendant reside in Montgomery county, except those named as residents of Clay county. The purpose of the bill was to have the title and right of the said Montgomery Mining & Manufacturing Company to the lands in Clay county, which are described in the bill, to the extent of its interest and right therein, whether a fee simple or otherwise, settled by a decree of the city court of Montgomery, and that such right, title, and property be sold, and the proceeds, after the payment of the costs of the suit, distributed ratably among the stockholders of said corporation according to their several interests, and for general relief.

We will for convenience refer to the Clay county parties as the "Clay county defendants" in this opinion. The Clay county defendants severally demurred to the bill and moved to dismiss it for the want of equity. The chancellor in vacation, on the 12th day of September, 1904, rendered a decree dismissing the bill for the want of equity as to the Clay county defendants, without allowing any time for amendment to the complainant. No notice was taken of the demurrers in the decree. On the 27th day of September, 1904, the complainant made application for a rehearing. It appears from the record that the chancellor on the 31st day of October handed down an opinion in which he concludes that the bill was properly dismissed; but it seems that no decree overruling said application was enrolled or entered on the docket, so on the 28th day of December, 1904, the court handed down and had enrolled a decree overruling said application, in which is recited the fact that a decree was signed on the 7th day of November, overruling the application for a rehearing, but that said decree was not filed in the cause, nor noted on the docket, nor enrolled upon the minutes of the court. On the 2d day of January, 1905, the complainant perfected an appeal from the decree dismissing the bill as to the Clay county defendants to this court, which appeal has been duly certified by the register. On the 16th day of March, 1905, the bill was amended by making Charles B. Teasley administrator ad litem of the estate of all the deceased stockholders, naming them, whose estates are not represented by a personal representative a party defendant to the suit. All the defendants, except the Clay county defendants, filed answers admitting the allegations of the bill, and on submission for final decree the chancellor on the 16th day of March, 1905, rendered a decree granting the relief prayed for in the bill. On the 22d day of March, 1905, on application made by the Clay county defendants for a modification of the decree of March 16th, the court rendered a decree in which that decree was so modified that it should not affect in any wise any interest, right, or title owned in the land by said Clay county defendants. However the complainant had on the 17th day of March perfected an appeal from the decree of March 16, 1905, and on the 31st day of March, 1905, the Clay county defendants appealed from the decree of March 16, 1905.

The assignments of error made by the appellant Merritt relate to the dismissal of the bill for the want of equity as to the Clay county defendants. On the application for the rehearing made by the complainant to the court after the rendition of the decree dismissing the bill as to the Clay county defendants for the want of equity, the chancellor on the 31st of October, 1904, handed down an opinion justifying the decree dismissing the bill. The reasons for dismissing the bill for the want of equity are clearly pointed out in that opinion. We have critically examined, in connection with authorities upon which they are based, the argument and brief of counsel for appellant Merritt in opposition to the conclusion reached by the chancellor, and we adopt the opinion of the chancellor in part as the opinion of this court: "The decree dismissing the bill as to these defendants may be justified on either one of two entirely different grounds. If it contains no equity as to them, it must be dismissed as of course. If, containing equity, it is multifarious by reason of their joinder as parties defendant, it must be dismissed. The bill affirmatively shows that the venue as to these defendants is in Clay county. The bill could never be amended by eliminating the other parties defendant, so as to proceed against these defendants only, without disclosing the lack of local jurisdiction; and the motion to dismiss raises the question in a proper way. Citations under section 676, Code 1896. There is no equity in the bill. The mere allegation that these defendants 'claim some interest in the land,' which is the subject-matter of the suit so far as it concerns them, states no ground of equitable cognizance, unless it be conjoined with some averment in respect to the possession of the land, so as to show some interference with complainant's rights. If complainant's bill is in the nature of equitable ejectment, it cannot be maintained against these defendants unless they are in possession. There is nothing for complainant to do but take possession. If the bill is a bill to quiet title, it is necessary to allege actual or constructive possession in the complainant. As Lord Chancellor Redesdale said, in Devonshire v. Newenham, 2 Sch. & Lefr. 210: 'When the question is merely whether A. or B. is entitled to the property, there is no instance where a bill has been entertained.' "

In no aspect of this bill, considered with reference to these defendants, does it show any disturbance of the complainant's rights. "A mere fear of suit, or that another merely questions one's title, or even asserts a hostile title, will not justify the court in interfering and compelling litigation which might not otherwise arise." Rea v. Longstreet, 54 Ala. 594. The bill can have no help from the statute to compel the determination of claims to lands and to quiet title. Complainant's possession, actual or constructive, is material, and...