Nicolopoolos v. Donovan, 8 Div. 150.

• Decision Date: 27 March 1930
• Docket Number: 8 Div. 150.
• Citation: 127 So. 543,221 Ala. 16
• Parties: NICOLOPOOLOS v. DONOVAN ET AL.
• Court: Alabama Supreme Court

127 So. 543

221 Ala. 16

NICOLOPOOLOS v. DONOVAN ET AL.

8 Div. 150.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Bill in equity by R. M. Donovan and others against G. P Nicolopoolos. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed and remanded.

Nathan Nathan & Nathan, of Sheffield, for appellant.

John E. Deloney, Jr., of Tuscumbia, for appellees.

ANDERSON C.J.

We concur in the statement in the brief of appellees' counsel: "The jurisdiction of a court of equity to enforce the rescission of contracts and the surrender and cancellation of written instruments for due cause and to grant such other relief as the party may be entitled to is beyond question and is a remedy which equity courts alone are able to confer." But it must be borne in mind that, in order to invoke the powers of equity courts for this purpose, it must affirmatively appear from the bill of complaint that the complainant has no plain and complete remedy at law to enforce his rights or obtain relief from the matters set forth. It is also settled in this jurisdiction that courts of equity do not take jurisdiction merely for the purpose of declaring a rescission and that fraud alone is not a distinctive ground of equitable jurisprudence. Bullard v. Spencer, 208 Ala. 663, 95 So. 1; Hafer v. Cole, 176 Ala. 242, 57 So. 757; Merritt v. Ehrman, 116 Ala. 278, 22 So. 514.

"The doctrine is settled that the exclusive jurisdiction to grant purely equitable remedies, such as cancellation, will not be exercised and the concurrent jurisdiction to grant pecuniary recoveries does not exist, in any case, where the legal remedy, either affirmative or defensive, which the defrauded party might obtain would be adequate, certain and complete." 2 Pomeroy, § 914; National Life Ins. Co. v. Propst, 219 Ala. 437, 122 So. 656.

There is no averment of the insolvency of the respondent, and the bill shows that the contract is executory and no deed has been made, and does not show any outstanding notes or securities as to which the complainants can avoid only as a defense, but, from aught appearing, the contract is the sole memorial of the complainants' liability, and all the things charged in the bill can be completely and adequately redressed by an affirmative action at law. Complainants do not have to await disadvantages that may arise from a delay in action...