Stricklin v. Kimbrell

• Decision Date: 03 June 1915
• Docket Number: 89
• Parties: STRICKLIN v. KIMBRELL et al.
• Court: Alabama Supreme Court

69 So. 14

193 Ala. 211

STRICKLIN v. KIMBRELL et al.

No. 89

Supreme Court of Alabama

June 3, 1915

Appeal from Chancery Court, Fayette County; A.H. Benners Chancellor.

Suit by N.H. Kimbrell and another against T.L. Stricklin to enjoin an action at law. From a decree for complainants, defendant appeals. Affirmed.

Beasley & Wright, of Fayette, for appellant.

McNeil & Monroe, of Fayette, for appellees.

THOMAS J.

The appellant originally brought suit in ejectment in the circuit court of Fayette county against N.H. Kimbrell, one of the appellees, and recovered judgment for the lands involved in this suit. From this judgment an appeal was taken to the Supreme Court, but, the appellant failing to present the cause either by bill of exceptions or on the record, the judgment was, on April 23, 1914, affirmed on certificate.

One of the appellees, N.H. Kimbrell, on the 13th day of April, 1914 filed his bill in the chancery court of Fayette county, Ala against appellant, T.L. Stricklin, praying the reformation of the deed under which he claimed the land in lot 22 west of the wire fence crossing the lot from north to south, and that a temporary writ of injunction be issued restraining the further prosecution of said ejectment suit until the final hearing of the cause, and that on final hearing of the cause Stricklin be restrained from the further prosecution of the ejectment suit.

On the 20th day of April, 1914, the chancellor of the division in which the bill was filed refused the injunction applied for and indorsed his refusal on the bill. On the 27th day of April, before answer and service, the said Kimbrell amended his bill by alleging that said ejectment suit judgment had been affirmed by the Supreme Court, and made his application to Hon. John C. Anderson, as Chief Justice of the Supreme Court of Alabama, for the injunction applied for in the bill. The application was granted, and injunction issued staying the proceedings in the circuit court upon the judgment in the ejectment suit until the disposition of the cause in the chancery court.

1. The court committed no error in assuming jurisdiction of the cause after trial of the ejectment suit in the circuit court. The defendant in ejectment, having an equitable defense only, is not prevented from maintaining his bill to restrain the enforcement of the judgment merely because he did not assert his equitable defense in a court of equity before the rendition of the judgment in a court of law. Such delay in asking for relief in a court of equity does not constitute laches. Humphries v. Adkins et al., 142 Ala. 517, 38 So. 840, 110 Am.St.Rep. 42; Stevens v. Hertzler, 114 Ala. 564, 22 So. 121; Kennedy v. Davis, 171 Ala. 617, 55 So. 104, Ann.Cas.1913B, 225.

The case of Henley v. Chabert et al., 65 So. 993, is not in conflict with the above authority. The theory of the bill in the Henley Case was to seek relief from the judgment alleged to be the result of fraud, accident, or surprise, unmixed with fault or neglect on the part of the complainant.

In the case before us the complainants, N.H. and D.P. Kimbrell, sought to enjoin procedure at law till they could assert their equitable defense, and no question of accident, surprise, or fraud was relied on. There was no error in overruling appellant's motion to dismiss the bill for want of equity.

2. The appellant in argument and in the assignment of errors challenges the ruling of the chancellor in declining to dismiss the bill. The objection is that:

"No such privity existed between appellees and appellant as would entitle appellees to maintain this bill to reform their deed."

The averments of the bill are, and the proof shows, that appellees and those through whom they claim title were in the possession of the land west of the wire fence, in lot 22 under deeds which were properly recorded in the public records of the county; that appellant and appellees claim title through a common source, Dr. W.O. Collins; that when Collins sold to appellant's grantor he pointed out the line of the western boundary, along the wire fence across lot 22, and placed "angle bars" at the corners, and did not sell any land in lot 22 west of where said wire fence was then and is now located; that this grantee, Kimbrell, knew he was not purchasing, and Dr. Collins did not then own, any land west of said wire fence; that when said Collins conveyed the land to Kimbrell he did not describe the boundaries of the lot conveyed by measurement...