Zaner v. Thrower

• Decision Date: 27 November 1919
• Docket Number: 7 Div. 924
• Citation: 203 Ala. 650,84 So. 820
• Parties: ZANER et al. v. THROWER et al.
• Court: Alabama Supreme Court

84 So. 820

203 Ala. 650

ZANER et al. v. THROWER et al.

7 Div. 924

Supreme Court of Alabama

November 27, 1919

Rehearing Denied Feb. 5, 1920

Appeal from Circuit Court, Cleburne County; A.H. Alston, Judge.

Bill by George Zaner and others against A.B. Thrower and others for review or to cancel a decree of sale as a cloud on complainants' title. From a decree sustaining demurrers to the bill, the complainants appeal. Affirmed.

As alleged in the bill in the present case, the defendant Margaret E. Green is the daughter of Jane Zaner, and plaintiffs are the wife and children of Bailey Zaner, a son of Jane Zaner. Jane Zaner and her husband conveyed land to Bailey Zaner and his brother, which the grantees subsequently divided. Margaret E. Green executed a deed to Bailey Zaner on a recited consideration of $400, purporting to convey her interest in such land. It seems that notes were executed to her by Bailey Zaner, but it is alleged that she had no interest and that the notes were without consideration. She brought suit against W.C. McMahan, administrator of Bailey Zaner, and the present plaintiffs, seeking to enforce a vendor's lien alleged to have arisen in her favor by reason of such conveyance, claiming a balance due of $300 and asking that the land be sold. A decree was rendered in her favor, the land was sold, and the present bill is to review and set aside the proceedings and decree in that suit and the sale of the land. The bill alleges that in the former suit the cause was submitted for final decree on pleading and proof on April 29, 1915, and on May 22, 1915, the chancellor rendered a final decree in the cause at Anniston, Calhoun county, Ala. The decree shows that it was so rendered at Anniston, and not at Heflin, the place appointed for the holding of the chancery courts of Cleburne county. The original bill attacked the proceedings in the former suit on various grounds. An amendment attacks them on the further ground that the decree of sale and decree confirming the register's report of sale are each void, because rendered at Anniston, Ala., a place other than the place where the chancery court of Cleburne county is by law required or authorized to be held.

R.B Kelly, of Birmingham, and T.A. Johnson, of Heflin, for appellants.

W.B Merrill, of Heflin, for appellees.

THOMAS J.

The appeal is from a decree sustaining demurrer to the original bill of review or to cancel a decree of sale and proceedings thereunder as a cloud on complainants' title. Two questions are presented: (1) Whether the final decree of sale of said land by the chancery court, of date May 21, 1915, was void; and (2) whether in the record and proceedings of the chancery court for said sale there is an error of law apparent upon the record that would authorize the circuit court, in equity, to set aside said former decree and proceedings by the chancery court for the sale of the land.

Under the statute, application to file bills of review must be presented to the court within three years after the rendition of the decree, except in cases of infants and persons of unsound mind, who may apply within three years after the termination of disability. Code 1907, § 3178; Manegold v Beavan, 189 Ala. 241, 66 So. 448; Caller v. Shields, 2 Stew. & P. 417, 427; Stuart, Trustee, v. Strickland, 83 So. 600.

When the final decree sought to be reviewed has been executed before the filing of the bill of review--

"and a simple reversal will not repair the injury resulting from it, a prayer for the further decree of the court to put the party complaining into the condition in which he would have been if the decree had not been executed, is proper and usual. Story's Eq.Pl. § 420; Mitford's Eq.Pl. 188. The restoration of parties to the plight and condition in which they were, at and prior to the rendition of an erroneous judgment or decree, and the restitution of all advantages the party obtaining it may have acquired by its enforcement, upon reversal, it is the spirit and policy of the law to promote and compel, when there are not facts or circumstances which may render restitution inequitable. 3 Bac. Ab. Error, §§ 3, 389; Freeman on Judgments, § 482; Marks v. Cowles, 61 Ala. 299. In Bank of U.S. v. Bank of Washington, 6 Peters, 17, *** it is said: 'On the reversal of the judgment, the law raises an obligation on the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost. And the mode of proceeding to effect this object must be regulated according to circumstances.' " McCall v. McCurdy, 69 Ala. 65, 70; Sims Ch.Prac. p. 414.

In a bill of review the decree will be referred to the pleading and other proceeding had in the cause. When so considered, if it is apparent that the court has declared and enforced an erroneous conclusion of law, affecting the rights of the parties, such a bill will be maintained. Error other than this, intervening in the regular or orderly procedure of the cause, must be corrected by appeal, or by other appropriate action in that nature. Jordan v. Hardie, 131 Ala. 72, 76, 31 So. 504; Vary v. Thompson, 168 Ala. 367, 370, 52 So. 951; McCall v. McCurdy, supra.

All the parties to the chancery proceedings and the purchaser at such sale are made parties to the instant bill. There is no prayer that the purchaser be restored to his former status quo. It may be that in the event of recovery by complainants, under the general prayer of the bill, an appropriate decree would afford such purchasers such relief as the facts may warrant and the circumstances of the parties may permit.

Appellants insist that the decree sought to be reviewed was void, in that it shows on its face that the cause was pending in the chancery court at Heflin, in Cleburne county, and the decree was dated at Anniston, Ala., May 21, 1915. The record shows that at the April term (April 29), 1915, in said court and in Cleburne county, the cause of Margaret E. Green v. W.C. McMahan, Administrator, was "submitted at said term of this court for final decree on pleadings and proof as noted by the register, and by consent held for decree in vacation"; that upon consideration thereof the court was of opinion that complainant was entitled to relief and to have a lien declared and enforced on three promissory notes described in the bill, which amount, with interest, is found to have been $684.20. The decree further ordered that--

"Unless respondents pay to the register of this court for complainant said sum of $684.20 and all the costs herein, within 20 days from the enrollment of this decree, the register is ordered and directed to enforce said lien by selling said lands to the highest bidder for cash at public outcry, in front of the courthouse door in Heflin, Ala., after advertising the same. And upon the purchaser complying with the terms of said sale by paying the purchase price in full, the register will make said purchaser a deed to said lands, which deed shall have the effect, when said sale is confirmed by this court, of vesting in said purchaser all the right, title, and interest, claim and demand of all parties to this suit in and to said lands, both in law and in equity."

The decree further directed the register to pay, out of the proceeds of the sale, the court costs, and then apply the balance to the payment of said $684.20, with interest, and after paying said sums, if there is a surplus, the register will hold the same subject to the further orders of the court; that the register will file his report of said sale as soon as practicable, the same to remain on file for ten days, during which time objections and exceptions may be filed, and after the expiration of said time, "the papers may be sent to the chancellor for further decree thereon. Decreed at Anniston, Ala., this May 21, 1915, W.W. Whiteside, Chancellor." The indorsements appearing of record on the decree are: "Filed and enrolled May 22, 1915. Joe L. Groover, Register. Minutes C. pp. 285, 286." The decree and subsequent orders will be presumed to have been duly enrolled by the register on the minutes of that court in Cleburne county, at Heflin, Ala., pursuant to law, in the state of the abridged record presented as by agreement of counsel, of date December 4, 1917.

It is provided that--

"Decrees must be rendered in writing, in term time, if practicable; but in cases deemed by the chancellor difficult, he may reserve the rendition of decree until vacation, and may render it at any time before or during the next term." Code 1907, § 3207.

This statutory provision finding place in the Code of 1852 as section 3006, with slight modifications not here material, has been embraced in each subsequent Code. Rule 78, governing practice in the chancery court (Code 1907, p. 1552), is as follows:

"When a cause is submitted during term time for a decree or order, such decree shall be valid if rendered during any vacation. When any decree or order is made by a chancellor in vacation, it shall be the duty of the register, as soon as the same is filed in his office, to enter the same at length on the minute book of the court immediately after the minutes of the previous term, and the same shall be considered as enrolled from and after such entry, which shall be dated; but if said decree be other than for the payment of money, no process for its execution shall issue thereon until the next ensuing term of the court, unless the complainant, or his solicitor, shall have given to the defendant, or his solicitor, ten days' notice in writing of his or their intention to have the execution of the decree, which notice shall be served by the sheriff, and filed with the register as a paper in said decree. When the decree is rendered in vacation, either pa

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