Clark v. Allen , 87 Ala. 198 ( 1888 )

SOMERVILLE, J.

Tbe bill is filed by tbe appellee, Mrs. Allen, for the purpose of asserting an equitable interest in certain described lands, of which the legal title is in the appellant, Clark, who was defendant in the court below. The incidental relief sought is an injunction against a judgment for rent, obtained by Clark against the complainant and one Spencer, in an ejectment suit for the lands, in which Clark proved successful, which judgment was affirmed on appeal to this court. — Clark v. Spencer, 75 Ala. 49.

Two or three settled principles of law, in our opinion, require an affirmance of the chancellor’s decree granting to the complainant the relief prayed. ,

The land in controversy belonged to one Spencer, and contained eighty-eight acres, or eight more than he was entitled to have set apart to him as a homestead, as against the execution under which it was sold, and purchased by Clark. Mrs. Allen bought the land from Spencer, for a valuable consideration, he at the time residing on it as a homestead. This sale, by deed duly executed, passed to her as purchaser an equitable title to Spencer’s right of homestead — consisting of eighty acres, to be set apart or selected out of the whole tract — the remaining eight acres only being liable to Clark’s execution. Clark, nevertheless, was vested with the legal title to. the whole, until the exempted portion was set aside. When so designated and identified, the homestead would be rescued from the execution sale, because, as to the homestead, this sale was void. —Clark v. Spencer, supra; DeGraffenreid v. Clark, Ib. 425; Hardy v. Sulzbacker, 62 Ala. 44. Under this state of facts, the title of the complainant was purely equitable, and not legal; and she could invoke the aid of a court of chancery in asserting it, and having it confirmed. That court would have power to appoint commissioners, and authorize them to set aside the homestead by metes and bounds, so as to embrace an area of eighty acres, including the dwelling of the vendor, and not exceeding in value the sum of two thousand dollars. McGuire v. Van Pelt, 55 Ala. 344, 364. This is precisely the relief granted by the special chancellor in his decree.

It is contended, however, that the complainant had a right to go into the Circuit Court, and have the sheriff’s execution sale set aside for manifest irregularities; and for this reason, it is said, the bill is without equity. It is true, that under the practice in this State, it has been held that a third person, who has an equitable interest in lands, equally with one holding a legal title, connected by purchase with the defendant in execution, may, in a proper case, make a motion to set aside an execution sale, if his interests are thereby prejudiced.—Henderson v. Sublett, 21 Ala. 626; Lee v. Davis, 16 Ala. 516. But it by no means follows, that he is bound to pursue this remedy. If there is any distinct ground of equity jurisdiction, entitling him to invoke the aid of chancery, or if setting aside the execution sale is an incomplete and inadequate remedy, as in this case, he may make his choice o£ the forum in which he will enter for relief. He is not bound to select the inadequate remedy. Ray v. Womble, 56 Ala. 32. It may be admitted that a court of equity will not take jurisdiction to set aside a sheriff’s sale in ordinary cases, independently of some specific ground of equitable jurisdiction. Nor is that the primary purpose of the present bill. Clark, as we have said, holds the legal title of the entire tract of land. He bought it with full knowledge of the complainant’s rights, as claimed in the bill. He holds the legal title, therefore, charged with her equity, as a trustee for her benefit. The bill seeks to carve this equity out of his legal title, and to set aside a judgment for rents to which, in equity, the trustee was not entitled, because the land belonged not to him, but to the complainant as his beneficiary. All this can be accomplished without the formality of setting aside the execution sale, by a more devestiture of the legal title, and perpetually enjoining the judgment in the ejectment suit, as done in the chancellor’s decree. The complainant’s remedy at law obviously was not adequate. The judgment for rents was properly apportioned, in view of the fact that the complainant is entitled to only eighty out of the eighty-eight - acres embraced in the land, the remainder going to the defendant, Clark, under his purchase at the sheriff’s sale.

The-decree is affirmed.