Sanders v. Wallace

• Decision Date: 13 April 1897
• Citation: 114 Ala. 259,21 So. 947
• Parties: SANDERS v. WALLACE ET AL.
• Court: Alabama Supreme Court

21 So. 947

114 Ala. 259

SANDERS v. WALLACE ET AL.

Supreme Court of Alabama

April 13, 1897

Appeal from chancery court, Perry county; W. H. Tayloe, Chancellor.

Bill by Jane A. Sanders against Thomas M. Wallace and another to recover a dower interest in certain lands held by defendants severally. There was a decree sustaining demurrers to the bill, and complainant appeals. Reversed.

J. H Stewart, for appellant.

Pettus & Pettus, for appellees.

COLEMAN J.

The appellant filed the present bill to recover a dower interest in certain lands, which were sold under execution against her husband in his lifetime, and which were purchased at the execution sale by Pleasants & Gates. The bill shows that after their purchase, the lands were sold to the respondents,-a part to Thomas M. Wallace and a different part to Thomas W. Williams. The bill avers marriage, seisin in fee by the husband during marriage, sale under execution, and purchase as above stated, and the death of the husband. It would seem, on principle and authority, that the averment of these facts make a prima facie case for relief, but the court sustained a demurrer to the bill, and the appeal is prosecuted from the decree of the court sustaining the demurrer. One ground of demurrer is that, as the bill shows that different parties own the land in different rights, the two cannot be joined as respondents in the same bill. The objection is not good. The purpose of the bill is to enforce a claim for dower. The claim is single. It applies to the whole land alike. It was sold by the sheriff as a whole, and the respondent purchased with legal knowledge of complainant's right to dower in these lands. In section 632, Story, Eq. Jur., one of the grounds of equitable jurisdiction is "where the lands are in the hands of various purchasers, or their relative values are not easily ascertainable"; and by Pomeroy, "for the settlement of antagonistic claims without multiplicity of suits." They equity in this respect comes fairly within the principle declared in the following cases: Randle v. Boyd, 73 Ala. 282; Ex parte Elyton Land Co., 104 Ala. 91, 15 So. 939; Collins v. Stix, 96 Ala. 341, 11 So. 380; Goodburn v. Stevens, 1 Md. Ch. 420.

The other grounds of demurrer will be considered together, for they all rest upon the same principle. The question raised by these grounds of demurrer is whether a bill filed for the recovery of dower must affirmatively show, either that the husband died intestate, or that he died testate but made no provision in his will for the benefit of complainant; in other words, that the bill must not only show that her right of dower accrued, but affirmatively that it is not barred. We are quite sure that the defense cannot be raised by demurrer. Mr. Daniell, in his work on Chancery Pleading and Practice says: "Whenever any ground of defense is apparent upon the bill itself, the appropriate mode of defense is by demurrer." Section 542. "A demurrer will lie whenever it is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing." Id. § 543; Story, Eq. Pl. § 448. In Grimmet v Henderson, 66 Ala. 521, the principle is declared "that an alleged fact, not appearing on the face of the complaint, is a matter for a plea, but not a cause of demurrer." Huss v. Railroad Co., Id. 472. Whenever a demurrer sets forth facts, which do not appear on the face of the bill, and which, if true, show that complainant's cause of action is barred,...