Marshall v. Olds , 86 Ala. 296 ( 1888 )

SOMERVILLE, J.

The amended bill, in our opinion, is a radical departure from the case made by the original bill, and makes an essentially new case, by materially changing the title under which the complainant, Mrs. Olds, claims relief. The original bill claimed a resulting trust in the land for Mrs. Olds’ sole benefit, based on an alleged agreement between her father, one A. Marshall, and herself, by which he furnished the money to the defendant H. Marshall, his son, to redeem the land in controversy from sale under a decree of the Chancery Court. It alleges that the son redeemed it accordingly, taking a conveyance of the legal title to himself. The amended bill alleges both a new right or title, and a new contract, in this; that the father, A. Marshall, made the redemption of the land for his own use and benefit, and not for that of Mrs. Olds; thus creating a resulting trust in his own favor, the legal title having been taken in the name of H. Marshall, the son. The death of the father is further alleged, and the title of the complainant thus becomes that of an heir, and not only an heir, -but a tenant in common of the lands with the other complainants, who have been made parties complainant by the amendment.

Under the rule laid down by our past decisions, the chancellor erred in not sustaining the demurrer to the second amended bill. — Ward v. Patton, 75 Ala. 207; Rapier v. Gulf City Paper Co., 69 Ala. 476; Jones v. Reese, 65 Ala. 134; Scott v. Ware, 64 Ala. 174; Glass v. Glass, 76 Ala. 369.

Reversed and remanded.