Scott v. Leigeber
| Decision Date | 25 May 1944 |
| Docket Number | 6 Div. 210. |
| Citation | 245 Ala. 583,18 So.2d 275 |
| Parties | SCOTT v. LEIGEBER et al. |
| Court | Alabama Supreme Court |
Griffith & Entrekin, of Cullman, for appellant.
Earney Bland, of Cullman, and S. A. Lynne, of Decatur, for appellees.
This appeal is from a decree of the equity court sustaining the demurrer to the bill as amended on September 24, 1943. Appellant has assigned not only that decree but other interlocutory orders of the court. They relate to rulings on a motion for a new trial and rehearing of a decree overruling demurrers to the bill as it then stood. Appellant demurred to the motion. The demurrer was overruled, and on September 24 1943, the court granted the motion, and on further consideration of the demurrer sustained it as to grounds "3-a" and "15-a", and otherwise overruled it. Thereupon complainant on that day amended the bill by striking that feature of it to which grounds "3-a" and "15-a" were directed. Additional grounds of demurrer were assigned to the bill as thus amended: the demurrer was then sustained.
It is from that decree that this appeal was prosecuted.
When an appeal is taken from an interlocutory decree, prior interlocutory decrees are not assignable for error, unless those decrees are such as are appealable, and were rendered within the thirty-day period to the time of the appeal. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Fogleman v. National Surety Co., 222 Ala. 265, 132 So. 317; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502 (4); Lampkin v. Strawbridge, 243 Ala. 558 11 So.2d 130.
An interlocutory decree is subject to modification or change at any time before final decree. Carter v. Mitchell, 225 Ala. 287 (21), 142 So. 514; O'Rear v. O'Rear supra; Ex parte Bozeman, 213 Ala. 223, 104 So. 402; Ex parte King, 230 Ala. 529 (3), 162 So. 275.
Rule 62, Equity Practice, Code 1940, Tit. 7 Appendix, was not intended to regulate or limit the power of a court of equity to modify or set aside an interlocutory decree, nor to grant the right of appeal from an order doing so. That rule was evidently intended to put the equity procedure for a new trial on a basis resembling more closely procedure at law in that respect. See, Johnson v. Foust, 242 Ala. 659, 7 So.2d 864.
A demurrer to a motion to set aside or modify a decree is inappropriate, and a ruling on it is not reviewable. Linn v. Linn, 242 Ala. 688, 8 So.2d 187.
The first two assignments of error are controlled by the foregoing discussion and cannot be considered.
The only matter which we can consider is the ruling on demurrer to the bill as amended on September 24, 1943. Piecing together the several amendments to the bill so as to state its status at the time the demurrer was sustained, we find it to be about as follows: Virgil Scott, a non compos mentis, by R. E. Scott, his guardian, is complainant in equity, praying that the court will cancel deeds executed by him to J. W King, and the conveyances out of J. W. King to respondents upon the ground that at the time he executed the deeds to J. W. King, he was of unsound mind, and not capable of transacting any business nor of conveying the land. That complainant is in possession of the land as alleged in paragraph 10 of the original bill, but in the amendment filed January 18, 1938, it is alleged in paragraph "E" that R. E. Scott as guardian of Virgil Scott is now in actual possession of a great portion of said land and is entitled to possession of it all; that all the respondents had knowledge of the mental incapacity of complainant at the time they obtained title to the different portions of such real estate.
We must treat the bill on demurrer in a light most unfavorable to complainant. We cannot therefore construe its several allegations to mean that complainant is in possession of all the land, but only an undescribed "great portion" of it. So that the question is whether the bill to which demurrer had been overruled twice, was after all subject to the demurrer, which was finally sustained.
Before doing so, we will observe that if there is any insufficient description of the land in the deed to complainant, it is immaterial in this suit. Complainant's grantee is estopped to deny his title as it existed at the time of the conveyance, and so are his subpurchasers. They cannot claim under a deed from complainant and then insist that complainant had no title in a suit to cancel the deed because complainant was a non compos mentis. Ware v. Dewberry, 84 Ala. 568, 4 So. 404; Lewis v. Watson, 98 Ala. 479, 13 So. 570, 22 L. R.A. 297, 39 Am.St.Rep. 82; St. Clair Springs Hotel Co. v. Balcomb, 215 Ala. 12, 138 So. 858; Wall v. Hill's Heirs, 1 B. Mon., Ky., 290, 36 Am.Dec. 578.
The amendment which refers to the deed to complainant wherein it is claimed that the description is insufficient was withdrawn. The insufficiency of that deed has no proper place in this cause; and is not involved upon a consideration of the demurrer to the bill which was sustained.
The deeds to J. W. King by Virgil Scott sought to be set aside January 13, 1928 and January 14, 1928, are controlled in respect to the grantor's insanity by sections 6822 and 6824, Code of 1923 (sections 41 and 43, Title 9, Code of 1940). The latter deed is alleged to have been to correct an error in the description. The bill alleges that J. W. King, the grantee of complainant, had notice of complainant's insanity at the time of its execution. Therefore the deed was absolutely void as to him. Ivey v. May, 231 Ala. 339, 164 So. 732. And also void as to his grantees, whether they had notice and paid value or not. Hood v. Holligan, 229 Ala. 539, 158 So. 759; Livingston v. Livingston, 210 Ala. 420, 98 So. 281.
If such a grantor is out of possession, he has an adequate remedy by an action of ejectment at law. Holmes v. Riley, 240 Ala. 96, 196 So. 888; Wall v. Hill's Heirs, 1 B.Mon., Ky., 290, 36 Am.Dec. 578. And under such circumstances, equity will not ordinarily grant relief. Holmes v. Riley, supra; Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578; White v. Hale, 234 Ala. 385, 175 So. 288.
The bill alleges that complainant's grantee, King, conveyed twenty acres to Ocie McDonald and wife; sixty acres to Leigeber; and a small lot to Ed Goodwin and wife whose description and size are set up so as to make it indefinite to one not familiar with the metes and bounds, but said to be in the NW 1/4 of NW 1/4, Section 20, Township 11, Range...
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