Miller v. Thompson, 7 Div. 363.

CourtSupreme Court of Alabama
Writing for the CourtSAYRE, J.
Citation96 So. 481,209 Ala. 469
Docket Number7 Div. 363.
Decision Date05 April 1923

96 So. 481

209 Ala. 469


7 Div. 363.

Supreme Court of Alabama

April 5, 1923

Rehearing Denied May 17, 1923.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Bill of John Henry Thompson and another against R. L. Miller and others. Decree for complainants, and respondents appeal. Affirmed. [96 So. 482]

Goodhue & Goodhue, of Gadsden, for appellants.

Motley & Motley, of Gadsden, for appellees.


A partial statement of the contents of the bill in this cause may be found in the report of a former appeal. Miller v. Thompson, 205 Ala. 671, 89 So. 51. But, in view of two contentions stated in the brief for appellants, it may be well to state further that the bill and answer alike aver, in substance, that James Miller died seized and possessed of the land in controversy-meaning, as we think, that he was in possession with title-and it was hence not necessary to adduce proof of the fact. Further, the amendment by which Cora Motley came into the cause as a party complainant with original complainant Thompson avers that Thompson, having acquired the interests of all the heirs of James Miller, deceased, in the land, executed a conveyance of a one-half interest to his cocomplainant Cora Motley. But the conveyance exhibited and proved is so phrased as, in facie, to give color to the contention that complainant Thompson parted with his entire interest. Vandegrift v. Shortridge, 181 Ala. 276, 61 So. 897. Upon this it is contended that, since both complainants are not entitled to relief, neither separately can have a decree, citing Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623. But that law has been changed so that now relief may be decreed in favor of any one or more complainants, and denying relief to any one or more. Code 1907, § 3212. Conceding, without deciding, the effect of the conveyance from Thompson to Cora Motley to be as contended, no interest of defendants is adversely affected by the frame of the bill in this particular, and at least Thompson is a proper party. Miller v. Thompson, supra; Broughton v. Mitchell, 64 Ala. 210.

The real question in this cause arises out of the contention as to the operation and effect of proceedings, and a decree had in the probate court, in the matter of the petition of the widow of James Miller, in which she sought to have the land in controversy set aside to her as homestead. The amended bill sets forth the title of both complainants and defendants. It exhibits in detail the proceedings and decree purporting to set off and allot to Millie Miller, the widow of James Miller, deceased, as her homestead under the laws of this state, the land in controversy, and avers that afterwards she executed the conveyance under and by virtue of which defendants claim to own the fee. Complainants claim that the proceedings and decree are void and of none effect; that the widow's deed conveyed only her life estate, assigning to it only such effect as it would have had in the absence of any proceeding to set apart homestead; that the title in remainder is in them as the heirs and grantees of the heirs of the deceased owner-and file their bill to clear up doubts and disputes concerning their said title. Defendants by their answer deraign title through conveyance from the...

To continue reading

Request your trial
30 cases
  • Williams v. Overcast, 8 Div. 549.
    • United States
    • Supreme Court of Alabama
    • April 26, 1934
    ...which are regarded as jurisdictional; and, in the absence of such a showing the decree will be void on its face. Miller v. Thompson, 209 Ala. 469, 96 So. 481, 483; Chamblee v. Cole, 128 Ala. 649, 30 So. 630." The two cases last cited-both by Mr. Justice Sayre-were: Miller v. Thompson, 209 A......
  • Davis v. Reid, 3 Div. 712
    • United States
    • Supreme Court of Alabama
    • June 30, 1956
    ...256 Ala. 236, 54 So.2d 498; Carter v. Carter, 251 Ala. 598, 38 So.2d 557; Craig v. Root, 247 Ala. 479, 25 So.2d 147; Miller v. Thompson, 209 Ala. 469, 96 So. The law in force as of the death of the decedent is the law to be complied with as to supplying the jurisdictional facts to be averre......
  • Alabama Public Service Commission v. Mobile Gas Co., 3 Div. 691
    • United States
    • Supreme Court of Alabama
    • April 16, 1925
    ...Alabama Water Co. v. City of Attalla, 211 Ala. 301, 100 So. 490; Hamilton v. Tolley, 209 Ala. 533, 96 So. 584; Miller v. Thompson, 209 Ala. 469, 96 So. 481; Edmondson v. Jones, 204 Ala. 133, 85 So. 799, for authorities; Acklen v. Goodman, 77 Ala. 521; Martin v. Hall, 70 Ala. 421; Alexander ......
  • Penton v. Brown-Crummer Inv. Co., 4 Div. 447.
    • United States
    • Supreme Court of Alabama
    • January 23, 1930
    ...equity to review judgments founded on fraud," etc. Johnson v. Johnson, supra; Berry v. Manning, supra. In the case of Miller v. Thompson, 209 Ala. 469, 96 So. 481, 482, the Supreme Court on this subject uses the following language: "Whether the attack upon the record and decree of the proba......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT