Yarborough's Adm'r v. Avant , 66 Ala. 526 ( 1880 )

BRIORELL, O. J.

If the bill is subject to the objection of blending legal and equitable defenses to the judgment at law, it is not thereby rendered multifarious. The joinder of equitable and legal rights, although relief may be prayed in reference to each, does not render a bill multifarious, and prevent the court from taking cognizance of the equities and enforcing them.—Carpenter v. Hall, 18 Ala. 439.

The whole scope of the bill is to establish the parol partition, had between Yarborough in his life and Avant, founded on the consideration that Avant had more than paid his share of the purchase-money of the lands, and of the expenses of the litigation of hostile claims asserted to them; and to enjoin the judgment at law in the real action, prosecuted by the personal representative and heirs at law of Yarborough^ for the recovery of the part of the lands allotted to him. It is obvious that the personal representative and heirs are necessary parties to the bill, and that relief is not sought against either of them, as to separate and distinct matters, with which the other may say properly he is without concern, connection, or interest.

The parol partition^ accompanied by possession, not continued so long that, in a court of law, the statute of limitations would.operate a bar to a real action by Yarborough, or his heirs, in whom the legal estate resided, passed to Avant a mere equitable title, of which the court of law, on the trial of the real action, could take no notice. An equitable title only will neither support nor bar a recovery in ejectment, or in the corresponding statutory real action. 1 Brick. Dig. 627, §§ 33-4. The judgment at law, though defense was made to the action, and the complainant attempted to show in himself a legal title, is not an obstacle to the enforcement of the equities which the complainant may have in and to the premises. Judgments are conclusive, and determine only matters of which the court rendering them had jurisdiction, and which were capable of being litigated and determined in the actions in which they may be rendered. They are not conclusive, nor do they determine matters lying without the cognizance of the court. A court of equity will intervene, and confirm a parol partition of lands which is founded on a valuable consideration, when it is attended by possession.—Hazen v. Barrett, 50 Mo. 506; Freeman on Co-Tenancy and Partition, § 402. The court proceeds upon the same principle on which bills of peace are entertained, quieting the enjoyment of equitable rights, establishing them by decree, and removing clouds from title. The bill discloses a clear case for equitable possession. Nor is there any room for the operation of the statute of frauds. The agreement between the parties has been wholly executed, save as to conveyance' of title. Possession was taken under the agreement, and the purchase-money fully paid. Thus, by the very words of the statute, the agreement is excepted from its operation,

Whether the sale and conveyance of the lands, made by Mrs. Bishop, to Yarborough and Avant, was void, because they were then held adversely, we shall not inquire. If that be true, the equity of the complainant is not involved in, nor does it depend upon, the validity of that transaction. From it he cali derive no aid in supporting his claim. That depends wholly upon the subsequent agreement between him and Yarborough. The test by which to ascertain whether a contract, assailed as illegal, is capable of enforcement, is, whether the plaintiff requires the aid of the illegal transaction to support his case. When his rights can be established without the aid of the illegal transaction, it does not affect them.—Gunter v. Leckey, 30 Ala. 591; Walker v. Gregory, 36 Ala. 180.

But a sale and conveyance of lands, adversely held, is void only as to the third persons having rights and interests which may be prejudiced. As between the parties, and as to all others than such persons, it is valid and operative.—Harvey v. Doe, ex dem. Carlisle, 23 Ala. 637; Abernathy v. Bozeman, 24 Ala. 189. It was not an objection to the agreement between Yarborough and Avant, or to the parol partition in execution of it, that the sale and conveyance of the lands by Mrs. Bishop was void as to the adverse possessors of the lands.

The decree rendered does not affect the rights or lien of Mrs. Bishop, as a vendor of the lands. These rights are expressly reserved, and the decree is made subject to them. Beyond this the court could not go in the present cause, to which Mrs. Bishop is not a party. All the purposes of this suit were met when the parol partition was confirmed, and the complainant clothed with the legal title residing in the heirs of Yarborough.

We do not deem it necessary to notice further the assignments of error. We are of opinion they are not well taken.

Affirmed.