Smith v. Rhodes

• Decision Date: 16 June 1921
• Docket Number: 3 Div. 518
• Citation: 90 So. 349,206 Ala. 460
• Parties: SMITH et al. v. RHODES et al.
• Court: Alabama Supreme Court

90 So. 349

206 Ala. 460

SMITH et al. v. RHODES et al.

3 Div. 518

Supreme Court of Alabama

June 16, 1921

Rehearing Denied Oct. 13, 1921

Appeal from Circuit Court, Butler County; A.E. Gamble, Judge.

Bill by Celia Smith and others against F.M. Rhodes and others, in which a cross-bill was filed. From a decree overruling demurrers to the cross-bill, complainants appeal. Affirmed.

R.B Smythe, of Greenville, for appellants.

Lane &amp Lane, of Greenville, for appellees.

SAYRE J.

Complainants Celia Smith and others, heirs at law of Frank Roberts deceased, filed this bill under the statute to quiet their alleged title (Code, § 5443 et seq.) to the west half of the west half of section 26, township 7, range 12, in Butler county. Defendant Rhodes in his answer, which he made a cross-bill under the statute (Code, § 3118), conceded complainants' title to the northwest quarter of the northwest quarter of the section, but denied that they had any right, title, or interest in the west half of the southwest quarter or the southwest quarter of the northwest quarter of the section, which he claimed to own through the foreclosure of mortgages made by Frank Roberts and his wife, Amanda, both now deceased. Further, by amendment of his cross-bill, cross-complainant averred that Wilson Smith, husband of original complainant Celia Smith, acting for and on behalf of original complainants (alleged to be insolvent), had cut and removed valuable timber from the land claimed by him (cross-complainant) and would continue so to do unless enjoined by an order of the court. The prayer of the cross-bill was for a temporary injunction restraining original complainants and their agent, Smith, from cutting timber, that cross-complainant's title in the 120 acres claimed by him be confirmed, and that a reference be ordered to ascertain damages suffered by reason of Smith's trespasses and for judgment for the same. Frank Roberts, codefendant in the original bill and one of the heirs at law of Frank Roberts, deceased, was made party defendant to the cross-bill; the averment being that as against him also cross-complainant was entitled to have his right and title in the 120 acres declared and settled. Demurrer to the cross-bill was overruled, and from that decree this appeal is prosecuted.

The point of some of the grounds of demurrer directed against the cross-bill appears to be that cross-complainant shows no title, for that no proper assignment of the mortgages to Shell & Rhodes, who foreclosed, is averred, nor any proper foreclosure; this latter for the reason that the power of sale was exercised by O.A. Lane, as attorney. This first objection--or these objections--is sufficiently answered by the averments of the cross-bill. As for the assignment, the averment is that "said notes and mortgages were duly and legally transferred and assigned to Shell & Rhodes, a partnership composed of W.F. Shell and F.M. Rhodes." Construing this averment against the pleader to the extent of holding that there was no assignment in writing by which the legal title passed to the assignees, and conceding that the foreclosure, to vest the legal title in the purchaser, should have been made in the name of the donees, of the power or their assignees, and not by a mere attorney, the averments of the cross-bill suffice to show, as against both objections, an equitable title in cross-complainant which the decree of the court, sitting in equity, should make effectual. Dacus v. Streety, 59 Ala. 183; Sanders v. Cassady, 86 Ala. 246, 5 So. 503; Newborn v. Bass, 82 Ala. 622, 2 So. 520; Jordan v. McClure Lbr. Co., 170 Ala. 289, 309, 54 So. 415.

It was not necessary to the equity of the cross-bill that cross-complainant should set up title to the entire property described in the original bill. Nor was any formal disclaimer...