Smith v. Gordon

• Decision Date: 03 February 1903
• Citation: 136 Ala. 495,34 So. 838
• Parties: SMITH ET AL. v. GORDON. [a1]
• Court: Alabama Supreme Court

34 So. 838

136 Ala. 495

SMITH ET AL. v. GORDON. ^[a1]

Supreme Court of Alabama

February 3, 1903

Appeal from Chancery Court, Franklin County; W. H. Simpson Chancellor.

Bill by Eugene C. Gordon against A. G. Smith, receiver of the Lady Ensley Coal, Iron & Railway Company, and others. From a decree overruling the respondents' demurrer to the bill as amended, and their motion to dismiss the same for the want of equity, respondents appeal, and assign the rendition of the decree as error. Reversed.

Ward &amp Houghton, A. G. Smith, and Lee C. Bradley, for appellants.

Thos R. Rouehac, for appellee.

DOWDELL J.

The appeal in this case is taken from an interlocutory decree overruling respondents' (appellants here) demurrer to the bill as amended, and their motion to dismiss the same for want of equity. The purpose of the bill, as originally filed was to remove cloud from complainant's alleged title to the mineral rights in the land described, and as subsequently amended was converted into a bill under the statute (Code 1896, §§ 809-813) to compel the determination of claims and quiet title to the mineral interest and rights in said lands. The relief sought by the original bill and that by the bill as amended was of a kindred nature. The change wrought by the amendment was not of such a radical character as to constitute, in pleading, a departure. As amended it averred, in substance, that in 1881 one Pounders, then the owner and in possession of the interest in dispute, executed a contract to convey the same to the appellee and his associates, to whose rights he and other parties named in the bill have succeeded, upon certain conditions particularly set forth in the said contract; that in 1882, said Pounders conveyed by deed said interests to Enoch Ensley, the grantor of the Lady Ensley Coal, Iron & Railroad Company, subject to the rights of appellee and his associates under said contract, which deed was duly recorded within ten days thereafter; and that in 1884 said Pounders executed a deed to said mineral interests to appellee and his associates. The bill also alleged in terms peaceable possession by the complainant, claiming to own said mineral interests, and that his title was disputed or denied, and that no suit was pending to enforce or test the validity of the title. The bill does not stop with these general averments, but sets forth with particularity the true state of the facts, by which it is shown that neither the complainant nor respondents were in the actual possession of the interest in dispute at or prior to the time of the filing of the bill, and that Pounders was, and has since 1881 been, in possession of the surface interests of the lands. The bill further alleges that the complainant was, by the execution of the deed to him by Pounders, vested with the constructive possession of said interests under the statute of uses.

It is perfectly clear that the contract of 1881 entered into between the complainant and his associates...