Carter v. Thompson , 41 Ala. 375 ( 1867 )

BYRD, J.

1. The appeal was taken by Carter, apparently, from the decree of the court upon the original bill, and not upon the cross bill. The appeal should have been taken in the name of all the defendants to the original bill. Though the defendant England has not appealed, yet assignments of error have been made by counsel in his name; and the counsel for the appellee has joined issue thereon, without objection thereto, or to the appeal; and we must, therefore, treat any objections which could have been made, as waived, and pass upon the assignments of error made in behalf of each defendant to the bill.

2. It is unnecessary to consider the fourth assignment of error, further than to say, that we hold that the decree of the court operated as a dismissal of the cross bill, unless the complainant therein complied with the conditions of the decree within the time prescribed; and there is nothing upon the record which shows that, he offered to comply, or did comply therewith. The order of the register, if an assignable error, was, at most, error without injury.

3. The other assignments of error may be disposed of together. The transcript has been made out defectively, or the counsel for appellee have committed several mistakes in the bill. There is no averment that England had sold the north-east quarter of section nineteen to complainant. The only allusion in the bill, to that quarter, is in the statement of the contents of the bond for titles, and then only by an exception of it from the stipulation to convey title to a certain portion of land when the defendant England should be requested; and also in averring that he had never obtained any title to the same from Ligón. This would imply that there had been a contract to convey that quarter ; but this is not equivalent to an averment of the fact. The deed of trust executed by Carter and wife, to secure the payment of the notes mentioned therein, describes the land as the north-west, south-west, and south-east quarters of section nineteen, and it is so described in the decree of the court; but, by reference to the bond for titles, attached to the deposition of the witness Campbell, it appears that the land sold is described as the north-east, the south-east, and the south-west quarters of section nineteen. The bill avers, that England sold complainant the land described in the deed of trust, and executed a bond for titles to the same. This is a variance between the allegations of the-bill, the proof, and the decree of the court; which would result in a reversal of the decree of the court, if we felt authorized, from the condition of the record in other respects, to pass upon the merits of the cause upon the pleadings and proofs.

4. The bill is defective, in not averring that complainant had made a request of England to make title in conformity to the terms of the bond for titles, or some excuse for not doing so. The averments that he was insolvent, and had allowed Carter to make a pretended redemption of the land, and that Carter held possession of it under such pretended redemption, are not sufficient to excuse the necessity of such a request prior to filing the bill. And though complainant may only seek to divest out of the defendants such title as they may have to the lands, yet he should have made a request of them to execute a quit-claim conveyance thereto, prior to filing the bill, or should have averred some excuse for not doing so.—Bell v. Thompson, 34 Ala. 633. Although this objection o the bill is somewhat inartificially raised by the ninth ground assigned in the demurrer of Garter, yet we think it sufficiently made; and, to that extent, the court should have sustained the demurrer to the bill.

5. The fourth ground would also have been well assigned, if the bill had sought a specific performance of the bond for titles; but^as it only sought a divestiture of such title as 'the defendants had, and did not seek to divest the rights of the holder of the notes mentioned in the deed of trust, it was properly overruled. As it seems that the notes have been paid, it would be well to amend the bill in that respect, so as to meet any objection which might be made to any relief that may be decreed under the general prayer of the bill, in ease the specific prayer cannot be granted.

6. The record does not show any note of the testimony; and in its absence, it becomes a grave question, under the rule of practice, whether this court can review the decree of the court below upon the pleadings and proof. If all the evidence set out in the record was introduced on the trial, we are inclined to the opinion, that, if the bill had been amended as above indicated, and so as to conform to the testimony, the complainant would have been entitled to some relief. We are satisfied that in all other respects, than as above noticed, the original bill has equity. If the complainant seeks a specific performance of the bond for titles, it may be necessary to make the heirs-at-law of Ligon parties defendant to the bill, and also to amend the prayer of the bill, with such other appropriate amendments to the stating part of the bill as are indicated in this opinion, and in such other respects as may be necessary to meet the requirements of the law and the facts.

7. A trustee may purchase land at his own sale, subject to be set aside upon the timely application of the beneficiaries ; and in this case it is apparent, if we look to the evidence, that Garter treated the purchase by the trustee as valid.—Charles v. Dubose, 29 Ala. 367.

Eor the error pointed out, the decree of the court is reversed, and the cause remanded.