Staples v. Barret

• Decision Date: 13 May 1926
• Docket Number: 1 Div. 407.
• Citation: 214 Ala. 680,108 So. 742
• Parties: STAPLES et al. v. BARRET et al.
• Court: Alabama Supreme Court

108 So. 742

214 Ala. 680

STAPLES et al. v. BARRET et al.

1 Div. 407.

Supreme Court of Alabama

May 13, 1926

Rehearing Denied June 10, 1926

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by Kate W. Barret and B.T. Barret against A.K Staples and the National City Bank of Mobile. From the decree respondents appeal. Reversed, rendered, and remanded.

Rule that bill is demurrable if one complainant is entitled to no relief held not changed by statute, which relates only to submissions for final decree on the evidence (Code 1923, § 6645).

The bill of complaint as originally filed sought to have a certain deed declared to be a mortgage, and to have it annulled as being a security given by a wife for her husband's debt, or, in the alternative, if the mortgage were held valid, to have an accounting and redemption of the mortgaged land.

The bill shows that the land conveyed (an undivided one-fourth interest in 4,480 acres in Jackson county, Miss.) was the property of complainant, Kate W. Barret; that her husband complainant B.T. Barret, was indebted to the City Bank &amp Trust Company of Mobile (which became afterwards the National City Bank, identical with the respondent herein) in the sum of $8,400, this debt being nominally due from Barret Bros Shipping Company, Inc., owned and controlled by B.T. Barret; that the transaction was in the form of a deed to the respondent A.L. Staples, and officer of the bank, with an option to Barret Bros. to repurchase for $8,400 and interest, within two years, the deed and option being dated December 29, 1911; that the execution of the option by Staples was guaranteed by the bank, and the option Was thereupon assigned by Barret Bros. to Kate W. Barret; and that in July, 1915, Staples conveyed to the bank his interest under complainant's deed, having previously ceased to be an officer of the bank.

The bill alleges "that the said A.L. Staples did not enter into possession of the said land and has not, nor had the said defendant bank, and same remains in the possession of complainant Kate W. Barret"; and also that complainant B.T. Barret had paid on his said debt to the bank enough to reduce it to about $1,300 prior to the filing of this bill.

It is further alleged that to October, 1921 the bank conveyed its interest in the land to one L.V. Pringle by a deed showing a consideration of $4,500, and that Pringle thereupon filed a bill of complaint in the Mississippi court, alleging that he was the owner of an undivided one-fourth interest in the land, and praying for a sale and division among the joint owners made parties, not including complainant Kate W. Barret. As to this the bill avers and charges:

"Complainants are informed, believe, and allege that the said L.V. Pringle did not pay the $4,500 set out as a consideration in the alleged deed from the National City Bank of Mobile to said Pringle, but that said instrument was but a part in a scheme concocted for the purpose of trying to place said matter outside of the jurisdiction of this court, on the part of the said National City Bank and other parties concerned, who are represented by the same counsel as to said land at Pascagoula, Miss., and said suit *** aforesaid is not in fact the suit of Pringle, but of said National City Bank acting by and through him."

A more detailed statement of the original bill of complaint and the course of the litigation will appear in the report of the case on a former appeal. National City Bank et al. v. Barret et al. 106 So. 168.

Following the remandment of the cause, the bill was amended by striking out Pringle as a party respondent, and adding the following allegations:

"Since the filing of the bill of complaint the suit mentioned therein of Pringle v. People's Bank of Mobile et al., filed in the chancery court of Jackson county, Miss., at Pascagoula, Miss., has proceeded to a conclusion and the land described in the bill has been sold. That the complainant Kate W. Barter filed a petition to be allowed to intervene in said cause and set up her rights, but the petition was denied, on the objection of counsel for said Pringle, acting in his behalf. That thereafter a decree was entered in said cause, and the land was sold on the 5th day of February, 1923, in pursuance thereof, said sale being duly confirmed on the 17th day of February, 1923, and the proceeds distributed amongst the complainant and defendants,"

--and by changing the prayer to read as follows:

"Complainants pray that the said National City Bank of Mobile be required to account for all moneys received or retained by it on account of said $8,400, and that a decree against the said bank for the amount so received and 8 per cent. per annum thereon be given complainants, one or both, as the court may determine is equitable and just and is due; that the defendant. National City Bank of Mobile be required to file an itemized statement of the same with its answer; that the register of the court be required to state an account as to taxes paid out on said property by Kate W. Barter, complainant, on her behalf; and that the court decree that the said National City Bank of Mobile shall pay to her one-fourth thereof, with interest at 8 per cent. per annum from date of each payment. Complainants pray for general and special relief."

The respondents demurred to the bill of complaint as last amended, on the following grounds, substantially:

(1) For want of equity.

(2) For want of equity, separately, as to each complainant, and, separately, as to each respondent.

(3) It appears that complainants have an adequate remedy at law.

(4) The last amendment is a departure from the original bill.

(5) The bill is multifarious.

(6) It seeks two or more inconsistent remedies.

(7) L.V. Pringle is a necessary party.

(8) The matters presented appear to have been adjudicated adversely to complainants by a competent court of Mississippi.

(9) The suit is barred (a) by laches; (b) by limitations of six years; and (c) by limitations of ten years.

The demurrer was overruled, and the appeal is on the record from that decree.

Stevens, McCorvey, McLeod, Goode & Turnner, of Mobile, for appellants.

George B. Cleveland, of Mobile, for appellees.

SOMERVILLE J.

The allegations of the bill of complaint show sufficiently and clearly that the deed of conveyance from the complainant Kate W. Barret to the respondent Staples was in purpose and effect a mortgage, given as security for the debt of B.T. Barret to the respondent bank, and hence that, as against the bank, or its assigns having notice, Mrs. Barret would be entitled to a decree of cancellation. Giddens v. Powell, 108 Ala. 621, 19 So. 21; Douglass v. Moody, 80 Ala. 61; 27 Cyc. 1010, 5.

But since the assignee of the bank, L.V. Pringle, is a resident of Mississippi and beyond the jurisdiction of the court in this case, and since, also, the Mississippi court has sold the land for division among the owners of the legal title, it...