Jackson v. Elliott , 100 Ala. 669 ( 1892 )

STONE, C. J.

The bill in this case is drawn with more than averagé care, and sets forth that Elliott, the vendor, did not own the entire title to the lands he contracted to sell and convey to Jackson! According to the averments of the bill, he was only a tenant in common with four others, his brothers, under the will of their father. The bill further avers that Elliott owned but little property—very little, if any—in excess of his exemptions, and that if four-fifths of the title should be lost to Jackson by virtue of said ownership of the co-tenants, Elliott was financially unable to respond in damages. Jackson was in possession under his purchase, had been sued to judgment on his purchase-money note, and the present bill was filed to enjoin its collection, because of the alleged defect in Elliott’s title. The bill makes a case for equitable relief. -Kelly v. Allen, 34 Ala. 663; Blanks v. Walker, 54 Ala. 117; Sivoly v. Scott, 56 Ala. 555; Lindsay v. Veasy, 62 Ala. 421; Wilkinson v. Searcy, 74 Ala. 243.

The answer, if true, shows that long before the sale to Jackson, Jefferson B. Elliott had become the owner of the entire title to the property he sold to him, Jackson. He, Elliott, furnishes the evidence of his ownership of two of the four-fifths, but as to the other two, he avers the conveyances have been lost. This will possibly cast on him the duty of making, or attempting to make other proof as to those other two-fifths, the result of which we can not with certainty anticipate. We hold that the chancellor rightly required of the defendant, Elliott, a refunding bond. record in such form that we feel it our duty to consider it. McArthur v. Carrie, 32 Ala. 75; Marston v. Rowe, 39 Ala. 722; Worley v. High, 40 Ala. 171; White v. Hutchings, Ib. 253; McCartney v. Bone, Ib. 533; Harrison v. Heflin, 54 Ala. 552; Goodwyn v. Baldwin, 59 Ala. 127; Barksdale v. Garrett, 64 Ala. 277; Goodman v. Winter, Ib. 410; Baker v. Prewitt, Ib. 551; Nettles v. Nettles, 67 Ala. 599; Garrett v. Garrett, 69 Ala. 429; Matthews v. McDade, 72 Ala. 377; Kelly v. Hancock, 75 Ala. 229; Long v. Parmer, 81 Ala. 384; Solomon v. Solomon, 81 Ala. 505; Bozeman v. Bozeman, 82 Ala. 389; Davis v. M. & C. R. R. Co. 87 Ala. 633; Knabe v. Burden, 88 Ala. 486; Duncan v. Williams, 89 Ala. 341; Semple v. Glenn, 91 Ala. 245.

The decretal order of the chancellor is affirmed. Let the costs of appeal be paid by the appellant.

Affirmed.