Sims v. Riggins

• Decision Date: 20 December 1917
• Docket Number: 7 Div. 777
• Citation: 201 Ala. 99,77 So. 393
• Parties: SIMS et al. v. RIGGINS et al.
• Court: Alabama Supreme Court

77 So. 393

201 Ala. 99

SIMS et al. v. RIGGINS et al.

7 Div. 777

Supreme Court of Alabama

December 20, 1917

Appeal from City Court of Talladega; Marion H. Sims, Judge.

Suit by Anna Riggins and others against A.L. Sims and others for injunction. Decree for plaintiffs, and defendants appeal. Affirmed.

Anderson C.J., and McClellan and Somerville, JJ., dissenting.

W.B Castleberry and W.B. Harrison, both of Talladega, for appellants.

Riddle & Burt, of Talladega, for appellees.

THOMAS J.

The bill is primarily for an injunction against appellant Sims to restrain him from prosecuting his suit in ejectment for the lands in question, and incidentally seeks the correction of certain proceedings had in the city court of Talladega, of date March 12, 1910, wherein certain lands were sold for division among joint owners; the sale having been confirmed by decree of date April 15, 1910, and the commissioner's deed to the purchaser, A.L. Sims, having been executed of date October 19, 1910. The bill in the instant case avers that a bill was filed in the city court of Talladega by D.S Riggins, against W.S. Riggins and these respondents, and others, praying a sale for division of the lands held by them as joint owners, specifically describing the same, and setting up that there was a misdescription, in that, with the 80 acres held by the parties to the suit as joint owners, and sought to be sold, there was included the northeast quarter of the southeast quarter of section 12, township 22, range 2, which did not belong to the said joint owners, but was the property of Mrs. Anna Riggins and her children, heirs at law of P.S. Riggins, deceased. At said sale A.L. Sims became the purchaser. It is averred that the parties to said proceeding to sell did not intend to sell the said 40-acre tract, and that the said Sims did not know that the same had been sold to and purchased by him, nor intend to purchase the same. It is further averred that after the sale of said lands in 1910, the appellant Sims went into the possession of the lands so purchased, that had been jointly held by the parties to the bill, and did not go into possession of any portion of the land now in question, that appellees cultivated and rented the same for the years 1911 and 1912, and that for the years 1913 and 1914, appellant rented the same from appellees and gained the possession thereof as such tenant, and paid the rent for said years. It is further averred that he made no claim of ownership to any portion of said questioned land until late in the fall of 1914, but that he thereafter, on January 14, 1915, brought his suit of ejectment for the recovery of the same from the appellees. It is further averred that the lands intended to be sold for division comprised only 80 acres, and that Sims bid therefor $550, and that the lands so purchased were easily worth the amount of his bid, and that, in fact, he paid nothing for the 40 acres of land in question; the same being worth more than the amount of appellant's bid at said sale. After the granting of the temporary injunction on February 2, 1915, the defendant submitted on his demurrers challenging the correctness of the bill, on grounds, among others: (1) That the respondents were estopped from impeaching the decree of the city court of Talladega; (2) that they were guilty of negligence and laches in not filing their bill within 3 years from the rendition of said decree; and (3) that the facts stated in the bill do not show that the complainants, or any of them, were entitled to the relief prayed, or to any other relief in a court of equity. The demurrers were overruled, and from this ruling of the chancellor the appeal is taken.

The bill in this cause is not for review. Its effect is to pray an injunction, under the facts alleged, to restrain the appellant from prosecuting his ejectment suit for the quarter section of land in question, under his title obtained by mutual mistake committed in said partition sale by all the parties thereto, in which said sale Sims, as purchaser, participated; that is to say, to restrain the said Sims from taking advantage of such mistake of fact, and to compel him to desist in his proceeding at law thereunder. McGraw v. Little, 73 So. 915.

No motion to dissolve the injunction was made on the ground that the bill was not properly verified. The question cannot be raised for the first time on appeal, though the verification is not sufficient. Rule 15, Chancery Practice, p. 1532, Code; Woodward v. State, 173 Ala. 7, 55 So. 506; Guyton et al. v. Terrell, 132 Ala. 66, 31 So. 83. If the defect in the affidavit had been pointed out on the trial, unless cured, the injunction would have been discharged. Woodward v. State, supra; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Jacoby v. Goetter, Weil & Co., 74 Ala. 427; Calhoun v. Cozens et al., 3 Ala. 498.

In Black on Judgments (volume 1, § 366), it is stated that the leading case in America upon the subject of equitable relief against judgments at law is that of Marine Insurance Co. v. Hodgson, 7 Cranch, 332, 3 L.Ed. 362. In that case Chief Justice Marshall specified the grounds for the interference of equity in the following terms:

"Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery."

The appellant may say that the appellees have asked the aid of this court to relieve them from a judgment, on account of a defense which they were not prevented by any act of the appellant, or by any pure and unmixed accident, from making in the other court. Chief Justice Marshall answers such a case as follows:

"It will not be said that a court of chancery cannot interpose in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law. Such cases, however, do not frequently occur. The equity of the applicant must be free from doubt. The judgment must be one of which it would be against conscience for the person who has obtained it to avail himself." Marine Ins. Co. v. Hodgson, 7 Cranch, 332, 3 L.Ed. 362.

The citations on this case are a striking tribute to the great Chief Justice.

In Freeman on Judgments, vol. 1 (4th Ed.) § 284a, there is cited one case (Jones v. Coffey, 97 N.C. 347, 2 S.E. 165) in support of the statement that parties to a judgment under which land was directed to be sold may not show in a collateral action that it belonged to them and was ordered sold by mistake. In section 304 the author says:

"There are authorities indicating that a judgment in partition was but a segregation into separate parcels of the titles which the parties before held, and that it had no force as an estoppel. Doubtless there may have been, and may yet be, cases in which a particular claim of title is the only one which is put in issue, and in which the final judgment may affect nothing but such title. But at the present time there can be no doubt that a judgment in a proceeding for the partition of lands is as conclusive upon the matter put in issue and tried as a judgment in any other proceeding, and may be set up as a bar to a writ of entry involving the same questions of title."

Discussing the general power of a court of equity to correct errors in judgments and decrees, Mr. Pomeroy admits that a court of equity may, under special circumstances, exercise its jurisdiction by correcting mistakes in judgments and decrees and other records, where the error is clerical or ministerial, and not judicial, and there is no other means of obtaining the relief. 2 Pom.Eq.Jur. (3d Ed.) § 871; Barnesly v. Powel, 1 Ves.Sr. 119, 289; Colwell v. Warner, 36 Conn. 224; Greeley v. De Cottes, 24 Fla. 475, 5 So. 239; Smith v. Butler, 11 Or. 46, 4 P. 517; Loss v. Obry, 22 N.J.Eq. 52; Wheeler v. Kirtland, 23 N.J.Eq. 13; Gump's Appeal, 65 Pa. 476; Byrne v. Edmonds, 23 Grat. (Va.) 200; Kearney v. Sascer, 37 Md. 264; Barthell v. Roderick, 34 Iowa, 517; Palmer v. Bethard, 66 Ill. 529; Millspaugh v. McBride, 7 Paige's Ch. (N.Y.) 509, 34 Am.Dec. 360; Chapman v. Hurd, 67 Ill. 234; Stites v. Wiedner, 35 Ohio St. 555; Pool v. Docker, 92 Ill. 501; Young v. Morgan, 9 Neb. 169, 2 N.W. 237; Willard's Eq.Jur. pp. 78, 79; Partridge v. Harrow, 27 Iowa, 96, 99 Am.Dec. 643; Smith v. Pearce, 6 Baxt. (Tenn.) 72; Beveridge v. Hewitt, 8 Ill.App. 467; Markham v. Angier, 57 Ga. 43.

In Stanton v. Embry, 46 Conn. 65, 76, the court said:

"It is within the province of a court of equity to restrain proceedings in either case alike, if it is certified that it is against equity and good conscience that they should be enforced; and this [is] not in denial of the authority of the court rendering the judgment or of the legality of its action; the injunction is not directed against it, but is strictly in personam, to restrain persons from making courts of law instruments of wrong. Mr. Story says: 'Indeed, the occasions on which an injunction may be used to stay proceedings at law are almost

infinite in their nature and circumstances. In general it may be stated that in all cases where, by accident, or mistake or fraud, or otherwise, a party had an unfair advantage in proceeding in a court of law, which must necessarily make

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