Abraham v. Hall , 59 Ala. 386 ( 1877 )

BRICKELL, C. J.—

A bill must necessarily disclose a case which falls within the jurisdiction of a court of equity— an error in this respect is fatal in any stage of the proceedings, and. can not be cured by consent or waiver.—Story's Eq. PI. § 10. The principle however applies to jurisdiction of the court, as to the subject matter and not to jurisdiction as dependent on the residence of the parties, or the amount in controversy. It is the rule in this State that the court will not take jurisdiction if the amount in controversy does not exceed twenty dollars; and if on the final hearing, the fact appears, the cause will be repudiated.— Cowan v. Jones, 27 Ala. 317. But a bill is not demurrable, if it discloses a case within the appropriate jurisdiction of the court, because it does not show affirmatively that the amount in controversy is within the jurisdiction. If it- is not, it is matter of objection by plea or answer, or on the hearing.

The general rule of pleading, is, that persons having nointei’est in the suit, and against whom no decree can be had, are improperly made defendants.—Story's Eq. PI. § 231. The bill fails to show that- Isaac Abraham, or Nunn, have any interest in the bale of cotton, which is the subject of controversy, or claim any, or that they are under any liability whatever to the complainant in reference to it. Their respective demurrers should have been sustained. The only averment in reference to Isaac Abraham, is, that Joseph is his partner, and had taken possession of the cotton, stored and marked it, claiming it as his own.. The mere fact of the partnership, did not render the one liable for the acts of the other, unless they were done in reference to and within the scope of the partnership business. Nunn was merely the warehouse-man with whom Joseph had stored the cotton—a mere agent or naked bailee, and should not have been joined as a defendant.

A bill to charge personal assets can not be maintained unless the personal representative in whom the legal title resides is before the court.—Story’s Eq. PL § 170. Distributees are permitted to sue in equity, and recover personal assets, the court dispensing with the presence of the personal representative, when there are no outstanding debts against the decedent, and if the administrator was suing and recovering, his only duty would be distribution—to receive with the one hand, and pay with the other, to the persons the law appoints, and whose respective interests it ascertains. Fretwell v. McLemore, 52 Ala. 124. But when it is proposed to litigate the title to the personal assets, and to charge them with the payment of debts, the personal representative must be a party, and the distributees are not proper parties. The demurrer because the administrator of the tenant is not made a party should have been sustained.

The lien of a landlord on crops grown on the rented premises, for the payment of rent is an incident to the tenancy. The lien is neither a jus in re, nor a jus ad rem,—it is not property in the crops, but a right to charge them with the payment of the rent.—Hussey v. Peebles, 53 Ala. 432. The statute provides a remedy by attachment, for the enforcement of the lien in particular instances. There are many cases in which judicial interference for the enforcement of the lien is necessary, or it will be unavailing,—not provided for by the statute. In these cases, and in cases in which the statutory remedy is inadequate, a court of equity, in the exercise of its general jurisdiction to enforce liens, or charges, or trusts, for the payment of debts may grant appropriate relief, and may, as it would pursue- any property subject to a lien, charge, or trust, follow the crops into the hands of all others than a bona fide purchaser without notice. The death of the tenant, rendered it impossible for the landlord to pursue the statutory remedy by attachment, and the court of equity has j nrisdietion to intervene and enforce the lien.— Westmoreland v. Foster, 52 Ala. 223. No alienation by the tenant while the crop remains on the rented premises, will entitle the alienee to protection as a bona fide purchaser.—Lomax v. Le Grand, in manuscript; Masterson v. Bentley, in manuscript.

For the errors noticed, the decree is reversed and the cause remanded.