Moore's Adm'r v. Alvis , 54 Ala. 356 ( 1875 )

STONE, J.

In King and Wife v. Avery, 37 Ala. 169, we construed' the third section of the act “ amendatory of the proceedings in chancery,” (Pamphlet Acts 1857-8, p. 230.) We then held, that “ any amendment of a bill, either as to parties or averments, which may become necessary to meet the justice of the case, or to meet any state of proof that will authorize relief, must be allowed by the chancellor.” We held, however, that an amendment which effected an entire change in parties, either complainant or defendant, would not be allowed. Neither would it be allowable to so change the averments of the bill as to make a change of the cause of action. This would be a departure, and would make a new case.—See Penn v. Spence et al., at present term. We think we may safely affirm that the legislature, in the statute we are construing, intended to make the rule of amendments in chancery conform substantially to the rule theretofore declared, governing amendments of pleadings in suits at law. —Rev. Code, §§ 2809-10.

We do not think that by the omission of the words, “to meet the justice of the case,” section 3356 of the Eevised Code is rendered less comprehensive than section three of tlie act of 1858, supra. The words in the statute, “ to meet any state of evidence which will authorize relief,” are retained. If any difference, these are more comprehensive than the omitted clause. They require the court to allow amendment, whenever, with such amendment, the evidence will authorize relief, without any reference to the “ justice of the case.” It would not be a forced construction to hold that the omitted clause was restrictive in its character. If such be the true construction, then the following would be a legitimate paraphrase: Amendments must be allojved, to meet any state of evidence which will authorize relief, provided the justice of the case will authorize such amendment. This would bring a new element — justice inter partes — into the question of allowing amendments. We content ourselves, however,- with declaring that the right of amendment under section 3356 of Bevised Code, is quite as extensive as it was under the third section of the act of 1858.

We do not think the amended bill, in the present case, made a new case. It simply amplified the facts, and expressed, in detail, the precedent negotiations by which the parties reached the result shown in the original bill. The complainant’s rights and remedies under the original bill were the same, and against the same party, as they are in the amended bill. Each presents a case of debt from Alvis to Moore, evidenced by the same promissory note, with a lien on one and the same tract of land for its security, to be enforced in equity, by a suit conforming in every respect to a suit to enforce a vendor’s lien. In fact, the parties by their contract seem to have intended to give the transaction that shape. Their writings constitute an executory sale of land by Moore to Alvis, with ordinary bond to make title. In the absence of all extrinsic facts, the writings make a plain ease for a bill by vendor to enforce a lien for the purchase money. The amendment should have been allowed.

We are aware that in the case of Winter v. Quarles, a principle is declared that is not in harmony with these views. To the extent of such conflict, that case is overruled.-See 43 Ala. 693. The case of McKinley v. Irvine, 13 Ala. 681, was decided before the enactment of-the statute of 1858, and is not governed by its provisions. Still, we regard that case as having carried principle to its utmost tension.

The decree of the chancellor, sustaining the demurrer to the bill as amended, is reversed, and the cause remanded.