Roach v. Olive

• Decision Date: 04 January 1923
• Docket Number: 8 Div. 403.
• Citation: 208 Ala. 612,95 So. 23
• Parties: ROACH v. OLIVE ET AL.
• Court: Alabama Supreme Court

95 So. 23

208 Ala. 612

ROACH v. OLIVE ET AL.

8 Div. 403.

Supreme Court of Alabama

January 4, 1923

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Bill by Jim Olive and Mattie Olive against Kate Roach to sell land for division, etc. Decree for complainants, and respondent appeals. Affirmed.

J. Fred Johnson, Jr., of Florence, for appellant.

James C. Roberts, of Florence, for appellees.

McCLELLAN J.

From a final decree in equity in favor of complainant, resulting from submission on pleadings and proof, the respondent appeals. There are some preliminary matters of which account should be taken.

The original bill was filed March 2, 1920. Demurrer thereto, with answer and cross-bill associated, was filed April 2, 1920. Demurrer to the original bill was overruled through decretal order on July 16, 1920. Respondents to the cross-bill constituted of original complainant (appellee) and Mattie Olive, filed their answer to the cross-bill on May 1, 1920. On July 15, 1920, original complainant filed an amendment to the original bill, designed evidently to substitute this pleading for his original bill. This substitute for the original bill became, upon filing and without order allowing the amendment, the initial pleading in the main cause. The act approved September 22, 1915 (Gen. Acts 1915, pp. 705 706), so expressly provides (sections 1, 3), if the amendment is filed before "final decree," as was the course in the present instance. See S-S. S. & I. Co. v. Yancey, 201 Ala. 200, 202, 77 So. 726; Farmers' State Bank v. Inman, 207 Ala. 284, 92 So. 604, 606. Hence the motion to strike this substitutionary amendment was without merit. If, after filing the amendments, solicitor for original complainant kept it in his possession, respondent's solicitor only becoming aware of its presence as a pleading in the cause months afterwards when acknowledging service thereof, the powers of the court were adequate to protect respondent from any prejudice that might, but apparently did not, result from the retention of the pleading by the opposing solicitor.

No demurrer to this substituted original bill appears to have been filed; hence assignments of error referable alone to the action of the court in overruling demurrer to the original bill are unavailable to present for review the sufficiency of this substituted bill.

The main and the cross causes appear to have been contested, including the taking of voluminous testimony, after notice of the amendment to solicitor for original respondent, upon the theory that the answer and cross-bill were pleadings in the cause, notwithstanding the answer and cross-bill are not shown to have been refiled after the amendment or after notice of it was acknowledged by solicitor for respondent, appellant. This acquiescence and course of contest effected to constitute the pleading in the cause, main and cross, the bases of the issues litigated to final decree in the court below. Bondurant v. Sibley, 37 Ala. 565, 571. There are no cross-assignments of error by appellee. Furthermore, the appellee, original complainant, perfected no cross-appeal from the decree; and no consent to cross-assign errors was given. S. C. Rule 3, Civil Code, p. 1507. In the decree under review the court did not establish a resulting trust in appellee, original complainant, in the land in question; thereby, in effect, concluding against appellee upon that aspect of his bill. There being no cross-assignment of errors by appellee, bringing up for review that phase of the relief sought by the bill and, in effect, denied by the decree rendered, no inquiry on this appeal into the appellee's asserted right to have had relief as the beneficiary of a resulting trust will be undertaken.

The substituted, as was the original, bill was filed by Jim Olive and Mattie Olive, widow of Sam Olive, who died in 1913, against Kate Roach, daughter of the marriage of Sam Olive and the said Mattie Olive. These parties are all negroes. The substituted bill's averments, and also the special prayer, invoked the court to declare in the complainant Jim Olive a resulting trust in an undivided interest in the entire tract called the Olive place, consisting, originally, of about 205 acres; this upon the theory that Sam Olive and Jim Olive, who were brothers, jointly purchased the land from Mr. Perry, and conveyed to Sam Olive by him, each of the brothers paying one-half of the purchase money. As has been stated, that theory of the bill was not accepted by the court below. It was, in effect, denied in the decree under review. In describing the possession taken, the improvements effected, and the use made by Sam and Jim Olive of the tract, and after alleging Jim Olive's "absolute possession," etc., of the 56 acres to be later mentioned, it is averred in the fourth paragraph:

"That no division was ever made between the said Sam Olive and Jim Olive, but that both used their respective parts as herein set out."

The decree under review adjudged that a division or partition between them of the respective parts of the tract lying on either side of the Natchez Trade Road was long ago accomplished. It is thereupon insisted for appellant that the decree, in favor of the original complainant, contradicts the indicated averment of his bill, and that error was thereby introduced into the decree. The contention is not sound. "Where the bill justifies relief and the defendants have not been taken by surprise, a decree will not be reversed, or a new trial granted, because of variance." Authorities collated in H. B. Chalfin v. Muscogee Mfg. Co. at page 380 of 127 Ala. (30 So. 555); Minchener v Henderson, 181 Ala. 151, 121, 61 So. 246. The bill avers, and the answer to appellant's cross-bill (alleging no right or title in the original complainant, Jim Olive) reiterates, the "absolute possession," among other indicia of claim and ownership, by Jim Olive of the tract of 56 acres, sought of the Natchez Trace Road, in which the decree established Jim Olive's title. There is a general prayer in the bill, predicated of mistake in the special prayers, invoking the court to establish Jim Olive's title in fee to the 56 acres occupied by him. Under the facts averred, if the evidence justified the conclusion,...