Turner v. Turner

Decision Date10 June 1915
Docket Number165
Citation193 Ala. 424,69 So. 503
CourtAlabama Supreme Court

Rehearing Denied June 30, 1915

Appeal from Chancery Court, Lowndes County; W.R. Chapman Chancellor.

Bill by Joe Turner against Howard Turner, revived after his death against his widow and minor children, including Daisy Turner. Decree for complainant, and Daisy Turner brings a bill of review. Affirmed.

On bill by a joint purchaser, compelled to pay the entire purchase money, for subrogation to vendor's lien against his joint purchaser, there was no presumption that vendor had taken independent security or waived the lien; a waiver in fact being matter of defense and proof.

W.A Gunter, of Montgomery, for appellant.

R.L Goldsmith, of Hayneville, and Tyson & Arrington, of Montgomery, for appellee.


This is a bill of review for alleged error apparent on the record of a cause in which decrees were rendered by the chancery court of Lowndes in the years 1896, 1897, and 1898. The nature of the questions there involved will appear from our consideration of the several errors assigned in the present bill. The correctness of the final disposition of the former cause, as affecting the substantial rights of the complainants, is the question, and the answer must be found on the face of the record, which, for tile purpose at hand, is constituted of the pleadings, processes, and decrees in the cause, in short, all the proceedings except the evidence itself. The evidence itself cannot be considered. McDougald v. Dougherty, 39 Ala. 409.

We consider first the error assigned against the former decree which goes upon the ground that the bill there stated no cause of action in equity against this complainant. The bill was this, in effect: Joe Turner, complainant, and Howard Turner, the original defendant, had received a joint deed conveying to them a tract of land in Lowndes county. To secure the purchase money they had given their four joint promissory notes. Howard had failed and refused to pay his half of the indebtedness, and complainant had thus been compelled to pay the whole. There was in the bill no specific averment of vendor's lien or mortgage, nor was there any specific claim of a right of subrogation eo nomine. The prayer of the bill was that a lien be decreed on defendant's undivided interest in the land, that for its satisfaction defendant's interest be sold, and for general relief. Pending the suit the defendant died, and there was an order of revivor against his widow and minor children, of whom the complainant in this bill was one; she being then less than one year of age. Thereafter the infant defendants were represented by a guardian ad litem of the court's regular appointment after service had in accordance with the statute in such cases made and provided.

The contention advanced by the bill of review is that the former bill showed nothing more than an effort to enforce a personal debt against Howard, and that when he died all basis for a decree was gone without a revivor against his personal representative--this, for the alleged reason that there was in the bill no basis of equitable relief against this complainant and the other heirs of the deceased, since they were not liable for his debt and no lien was set up against their inheritance--this, in the effort to work out a theory that the proceeding was lacking in due process and the decree void, for that the point decided was not within the substance of the litigation proposed by the bill.

It is not to be doubted that a party must stand on his own pleading, and the statute requires of bills of every character that they "must contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition, and conclude with a prayer for the appropriate relief." Code, § 3094. The former bill by its averment of facts disclosed a clear case for subrogation to the lien of a vendor, unless it be a fatal fault that it omitted to append a label to the equitable picture which by its averments of fact it presented for the court's inspection, and failed to exclude the hypothesis that the vendor may have waived his lien by taking independent security. Complainant was surety for the debt of his copurchaser, who was principal obligor for his own half of the debt. That debt was a lien upon the land (Newbold v. Smart, 67 Ala. 326), which it followed upon its descent to heirs. The right to subrogation is the right of the surety, who has discharged the debtor's liability to the creditor, to stand in the place of the creditor, to use his remedies, and to be entitled to his preferences against the estate of the principal debtor. 8 M.A.L. 197. From the facts averred, without looking elsewhere, a vendor's lien and complainant's right thereto by subrogation were to be inferred, and these natural, if not necessary, inferences, however defective the form of their statement may have been held on demurrer, were, in connection with the prayer for relief, quite sufficient in substance to invoke the court's jurisdiction to render the decree. Brown on Jurisdiction, § 3. The special prayer indicated that the complainant sought a lien, and there was besides the general prayer, which constituted a moving appeal to the court's great store of equitable power.

On a bill of review the court considers errors of substance only. McCall v. McCurdy, 69 Ala. 65. The right of the surety in the case stated depends on an established principle of equity rather than upon contract (Pearl v. Deacon, 24 Beav. 186), and the principle is brought into operation whenever the complainant appeals for the court's action on facts to which it is applicable. Nor is there any presumption that the vendor had taken independent security, or waived the lien which otherewise equity raised up for his protection. If there was in fact a waiver, that was matter of defense. Dowling v. McCall, 124 Ala. 633, 26 So. 959.

Nor does it appear of record that there was substantial error in proceeding to fix the amount of the indebtedness in the absence of the personal representative of the deceased. No purpose of a general administration was involved. The purpose of the bill was to fix a specific lien on realty that had descended to the defendant. The amount of the indebtedness for which a lien was sought needed to be fixed as against the heirs of deceased in a proceeding to which they were parties, and it was so fixed and decreed; but it is not perceived how the presence of an administrator, not in privity with the heirs, defending in a different right and for different purposes, would have contributed to a meritorious settlement of the decree for a lien as against the heirs. McCall v. McCurdy, supra.

From the foregoing considerations, establishing the jurisdiction of the court as upon a sufficient bill, and from the fact that the complainant in the present bill is not shown--could not, without a resort to the evidence in the previous cause, be shown--to have suffered prejudice in the determination of the amount of the indebtedness, it results that the failure to bring in the personal representative was not error to work a reversal on a bill of review. McCall v. McCurdy, supra.

It is further assigned for error that the decision in the former cause was against infants without proof--this, upon the theory that there was no note of testimony as required by rule 75 of the rules of chancery practice. The pertinent part of the rule is as follows:

"The complainant's counsel must then offer his testimony in chief, naming the witnesses and other testimony, of which the register must take a note; and then that of the defendant must be offered, and noted by the register, to which the complainant in like manner must offer his rebutting testimony. Any testimony not offered in this way, and noted by the register on the minutes, must not be considered as any part of the record, nor be considered by the chancellor."

The recitals of the record are:

"January 27, 1896. Testimony ordered published and cause submitted on pleadings and proof for decree in vacation."

And at the July term, 1896, the following:

"July 27, 1896. Continued under former order of submission, the file to be forwarded to the chancellor by the 10th of February next."

In the bill for review it is averred that there was no entry on the minutes of said court for the term held in January, 1896, nor at the July term, 1896, of any note of testimony in said cause, but that there is found in the file of said cause a paper purporting to be a note of testimony therein in the words and figures following: Here the bill sets out a regular note of testimony, certified by the register as of the 27th day of July, 1896, and marked by him filed on the same day. April 3, 1897, the chancellor decreed as follows:

"This cause was submitted on pleadings and proof, in term time, for consideration and final decree in vacation, and is argued and heard on such submission. On consideration, which is confined to the legal evidence in this cause, it is ordered, adjudged, and decreed that the complainant is entitled to relief. The register is directed to ascertain and report what is due the complainant for the moneys he paid for the defendant, Howard Turner, for the land described in the bill, the same being one-half of the amount of the purchase notes shown in exhibits, with interest thereon. He will give the parties due notice of his proceeding hereunder, and will report in vacation."

The bill here avers:

"That said note of testimony, after said cause had been submitted and after the adjournment of the court, was fraudulently enrolled on the book containing the minutes of said court without any date to the entry."

No importance is to be attached to the averment...

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