Rankin v. Dean , 173 Ala. 60 ( 1911 )

SIMPSON, J.

The bill in this case was filed by the appellees to enjoin an action of ejectment and for other purposes hereafter to be specifically mentioned. Said ejectment suit was before this court at a previous term, from which it will be seen that the complainants claim under a deed to their ancestor, made in 1873, which this court held to be a conditional deed, the title not to be absolutely vested in the grantee until the purchase money named therein should be paid, and that, until the payment of the purchase money, the purchaser, being in possession, held only an equitable title, which could not be set up in a court of law, and the vendor held the legal title as trustee for the benefit of the vendee. — Rankin v. Dean et al., 157 Ala. 490, 47 South. 1015.

The bill alleges that John R. Dean, the grantee, went into possession of the premises conveyed immediately on the execution of the conveyance, occupied them to the time of his death, and that complainants have remained in possession of the same ever since; that various payments had been made on same, at different times specified, leaving unpaid only $8, with accrued interest, which has been tendered to the duly authorized agent of the grantor, but he declined to accept the same until he could find the purchase-money note, or obtain proper power of attorney to satisfy said indebtedness; that complainants have ever been ready to pay the same, and are now ready and willing to pay whatever is due on said note; also that on December 16,1878, the grantor executed some kind of conveyance to respondent of said land, the particular description of which is unknown to complainants. It recites the proceedings in ejectment, that respondent is the transferee of said indebtedness, and that respondent had notice of the provisions of said original conveyance prior to and at the time of the making of said second conveyance-. The bill prays for an order of reference to ascertain what amount is due on said purchase, and offers to pay whatever may be found due; also prays for the injunction, that respondent be required to accept the amount found due, and to- satisfy the said debt, also that said alleged title of respondent be declared void, and complainants be vested with a clear, unclouded title to said lands, in so far as any claims of respondent may affect the same, and for general relief.

Respondent moved to dismiss, demurred, and answered the bill, admitting the conveyance and possession (though denying that it has been adverse), denied that the payments amount to as much as claimed, denied the tender, admitted the conveyance to him, but alleged that complainants could have ascertained the nature of said conveyance by an examination of the records, and claimed that said conveyance is paramount to the title of complainants.

The amendment to the bill brings the money into court, particularizes the times and amounts of payment, and claims that the respondent, after receiving the payments, delivering up one of the notes, etc., is estopped from proceeding in ejectment. It will be noticed that the bill seeks, not only to enjoin the action of ejectment, but also to require the entry of satisfaction by the payment of purchase money, and to declare invalid the conveyance made during complainants’ possession under the conditional deed, and remove the same as a cloud on the title, so that there is no adequate remedy at law.

The test is: “Would the owner of the property, in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary the cloud would exist.” — Rea, pro ami, v. Longstreet & Sedgwick, 54 Ala. 291, 294; Eufaula National Bank v. Pruett, et al., 128 Ala. 470, 473, 30 South. 731.

The remedy at law in this case is not adequate, and the chancellor properly held that the complainants are entitled to relief. The decree of the court is affirmed.

Affirmed.

McClellan, Mayfield, and Sayre, JJ., concur.