Patten v. Swope

• Decision Date: 08 April 1920
• Docket Number: 8 Div. 202,202A
• Citation: 204 Ala. 169,85 So. 513
• Parties: PATTEN et al. v. SWOPE.
• Court: Alabama Supreme Court

85 So. 513

204 Ala. 169

PATTEN et al. v. SWOPE.

8 Div. 202, 202A

Supreme Court of Alabama

April 8, 1920

Appeal from Circuit Court, Lawrence County; Robert C. Brickell Judge.

Bill by Annie Swope Patten and others against E.C. Swope for discovery and an accounting and for money decree. From a decree sustaining demurrers to the bill in certain aspects complainants appeal, and respondent E.C. Swope seeks a cross-appeal. Reversed and remanded.

Kirk &amp Rather, of Tuscumbia, for appellants.

G.O Chenault, of Albany, for appellee.

McCLELLAN J.

This bill was filed by Annie Swope Patten and others against E.C Swope and others, seeking discovery, an accounting, and, in a contingency, a money decree against E.C. Swope with respect to the rent for 1918 of a plantation in Lawrence county that, up to October 21, 1918, was jointly owned by all the parties to this cause. It appears from the averments of the present bill that in response to a previous bill a decree was rendered September 28, 1918, directing a sale of this land for division among the joint owners in proportion to their respective interests therein. This decree of sale for division made no provision for the rental for the year 1918. The sale was held by the register on October 21, 1918, at which sale, the appellant's brief recites, E.C. Swope, one of the joint owners, became the purchaser. The sale was reported to the court by the register; no exception to it was filed; and the sale was confirmed. As in the decree of sale and in the proceedings leading up to the rendition of that decree, no reference was made in the decree of confirmation to the rent of the plantation for the year 1918. It is alleged in the bill that E.C. Swope, a cotenant, collected from third persons a part of the 1918 rent before he purchased at the sale on October 21, 1918, the amount so collected being alleged to be unknown to complainants; and the claim is asserted that he was and is a trustee for his cotenants with respect to the sum so collected, and was due, as trustee, to account to them therefor.

The respondent E.C. Swope filed a demurrer addressed to the bill as a whole. It contained 23 grounds, including the ground (the first) that questioned, generally, the equity of the bill. The twenty-third ground reads:

"The bill is without equity in so far as it seeks to recover for any rent that was unpaid on October 21, 1918, when the land was sold."

The decree appealed from, as presently important, is as follows:

"*** The court is of the opinion that the twenty-third ground of demurrer is well taken, and that all other grounds are not well taken.

"It is therefore ordered, adjudged, and decreed by the court that the twenty-third ground of demurrer of the defendant E.C. Swope to the bill of complaint be, and the same is hereby, sustained and allowed, and that all other grounds of said demurrer be, and the same are hereby, overruled and disallowed.

"It is further ordered that the respondent E.C. Swope be, and he is hereby, allowed 30 days from this date to answer the bill of complaint."

A demurrer is an entity in pleading; and its grounds are but reasons why the major premise of the demurrer should be made effective by the ruling of the court. Cahaba Coal Co. v. Elliott, 183 Ala. 307, 308, 62 So. 808. In sustaining the twenty-third ground of this demurrer, which is addressed to the bill as a whole, though the twenty-third ground is only directed against a phase of the case made by the bill, the court vindicated and gave effect to the demurrer to the bill, not to a phase of it, and hence the complainants were prejudiced by the ruling and are entitled to their appeal, notwithstanding the court announced that it overruled the other 22 grounds of the demurrer to the bill. In this state of the record and of the ruling in question, the demurrant E.C. Swope had nothing on which to rest a cross-appeal, if such had been taken, whatever the basis for cross-assignment of errors (Sup.Ct. rule 3, Code, p. 1507), his demurrer to the bill having been, as stated, sustained by the court. The court might have denied effect to the twenty-third ground because its objection was partial only, following an address of the demurrer that assailed the bill as a whole, provided, of course, the bill presents equity otherwise and was also free from the criticisms made in grounds 2 to 22, inclusive. See, for possible analogy, Moore v. Altom, 192 Ala. 261, 68 So. 326; Broughton v. Broughton, 201 Ala. 311, 78 So. 87, 89.

As indicated, there is no effort to perfect a cross-appeal shown by the record. There are, however, cross-assignments of error by appellee, which are treated as effective in express terms in the brief for appellant, disclosing a character of consent by appellant to the cross-assignment of errors in quasi observance of Supreme Court rule 3, supra. In the circumstances, we treat the appeal in its fundamental aspects, viz.: whether the bill possesses equity for any purpose.

In the aspect that this bill seeks discovery, accounting, and a decree for money rent collected by E.C. Swope prior to the sale of the land on October 21, 1918, its equity must be denied under the authority of McCaw v. Barker, 115 Ala. 543, 22 So. 131, the doctrine of which was followed in Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50. While affirming the indubitable right of a tenant in common to have and recover of a cotenant the proportion of money rent collected from a third person by the cotenant which he withholds, it was there held, as upon apt authority, that in such circumstances the remedy at law is adequate and complete, and in that forum must the aggrieved tenant seek the enforcement of his right, unless the account between the parties is complicated, or some other ground of recognized equitable cognizance is shown to invoke the powers of a court of equity. It was then insisted, as it is now, that the right to invoke the powers of a court of equity for an accounting between tenants in common where one cotenant had collected from a third person money rent for the common property was predicable alone of the relation; but this court held to the contrary under the authority of Sanders v. Robertson, 57 Ala. 465, where it was declared (page 472) that the complicated character of the accounts afforded the reason for invoking the "original jurisdiction of such claims," and, also, in accordance with the therein quoted expression (115 Ala. pp. 549, 550, 22 So. 131, 133) from Gloninger v. Hazard, 42 Pa. 389, 401. It is not inappropriate to observe that the stated ruling in McCaw v. Barker, supra, was made notwithstanding other expressions in Sanders v. Robertson that might have inclined the judgment to a different conclusion. The question having been determined in McCaw v. Barker, it will not be now reconsidered with a view to pronouncing to a different effect.

In the present bill no complication in the account is shown. The account asserted in the bill is all on one side. McCaw v Barker, supra. It appears that the plantation was rented for...