Tillman v. Thomas

• Decision Date: 07 May 1889
• Citation: 6 So. 151,87 Ala. 321
• Parties: TILLMAN ET AL. v. THOMAS ET AL.
• Court: Alabama Supreme Court

6 So. 151

87 Ala. 321

TILLMAN ET AL. v. THOMAS ET AL.

Supreme Court of Alabama

May 7, 1889

Appeal from chancery court, Russell county; JOHN A. FOSTER Chancellor.

This is a bill filed by John Thomas and others, as heirs of their deceased ancestor, to have the proceedings of the probate court, under which certain lands of the estate were sold, set aside and annulled. There was a demurrer to the bill as amended, which was overruled by the chancellor. On final hearing the chancellor decreed that the complainants were entitled to the relief prayed for, and that the other of sale made in the probate court for the sale of the lands in controversy, the sale made under said order, the deed made by the order of said court to the defendant Tillman, and the deed made by said Tillman to Burt, be annulled and vacated "so far as the same undertakes to divest title out of the complainants." The defendants appealed, and the ruling on the demurrer and this decree are assigned as error.

J B. Mitchell and Watts & Son, for appellants.

Norman & Son, for appellees.

MCCLELLAN J.

This is a bill by heirs seeking to set aside and vacate the proceedings of the probate court, under which lands belonging to the estate of their ancestor were sold by his personal representative. As amended, the bill is presented in two aspects. In one it is sought to vacate the order of sale and confirmation on the ground of fraud in their rendition; in the other the same result is attempted to be reached on the ground that the probate proceedings are void on their face. A cause, if proper objection be interposed, cannot thus be presented to a court of equity in a double aspect, unless the complainant is entitled to the same relief on each phase of his allegations. That is not true in the case at bar. On the contrary, in that aspect in which the ground of relief is fraud, he would if the averments are supported by the evidence, be entitled to a decree vacating the order of sale, and annulling all proceedings thereunder, while in that aspect in which the decree is alleged to be void on its face he would be entitled to no relief in equity, but would be remitted to the law courts. Florence v. Paschal, 50 Ala. 28; Tyson v. Brown, 64 Ala. 244. If the latter allegation be not treated as merely redundant, it would seem that the bill presented two claims for relief which ought not to have been joined. But the objection on that ground could only be taken by demurrer, and no demurrer going to this point was interposed. Seals v. Robinson, 75 Ala. 363.

There was a general demurrer to the bill, as amended, on the ground that it disclosed the complainants had an adequate remedy at law. This objection was well taken to only one of the two aspects in which relief was prayed. Under the allegations that the proceedings sought to be vacated were void on their face, it was disclosed that an adequate remedy at law existed. But the complainants had no such remedy under their claim for relief on the ground of fraud. The rule is of general application that where the bill sets forth two or more claims for relief in equity, and a general demurrer is filed by respondents, it should be overruled, and the relief granted, if any of the grounds upon which relief is sought are of equitable cognizance. 1 Daniell Ch. Pr. 550; Dimmock v. Bixby, 20 Pick. 374: Morton v. Academies, 8 Smedes & M. 773. And in alabama this principle has been applied to a case very like the present one. A bill was filed to have a deed canceled as a cloud on title. The allegations disclosed one state of facts on which the remedy was in chancery, and another on which the remedy was at law. There was a demurrer to the whole bill, on the ground that the complainant had an adequate legal remedy. The opinion of this court was that "the bill contains two distinct independent grounds on which the claim for relief is based, and that, if either ground is sufficient, its force is not impaired by the fact that it is joined cumulatively with another alleged ground, which, of itself, will not maintain the equity of the bill;" and it was accordingly held that the demurrer was properly overruled. Shipman v. Furniss, 69 Ala. 563.

We concur with the chancellor's...