Shortridge v. Southern Mineral Land Co. , 186 Ala. 660 ( 1914 )

de GRAFFENRIED, J. —

The instrument, a copy of which is attached to the original bill, and which bears date June 30, 1858 (and which the reporter will set-out), conveyed, between the Shelby Iron Company and George D. Shortridge, a perfect equity in the lands referred to in the instrument, and which lands are described by government numbers in the bill. This instrument recites that the grantee had paid the grantor in full for the land, and, while it did not convey the legal title to the land, it did convey, as between the grantor and the grantee, a perfect equity in said lands to the grantee. The instrument show.s that the grantee had performed his every duty to the grantor, and that nothing was left to be done by either party, except for. the grantor to perfect his title to the property and then, without further or other consideration, convey the legal title to the grantee. This situation clearly differentiates this case from, and takes it out of the operation of the rules laid down in the cases of, Young v. Lathem, 132 Ala. 341, 31 South. 448, Smith v. Gordon, 136 Ala. 495, 34 South. 838, Bradley v. Bell, 142 Ala. 383, 38 South. 759, and Lady Ensley C. I. & R. R. Co. v. Gordon, 155 Ala. 528, 46 South. 938, and which cases are referred to by counsel for appellants in their briefs.

1. As there resided in appellee, as between the appellee and respondents, a perfect equity in the lands, no occasion arose requiring the appellee to file this bill until the respondents, or some one through whom they claimed the naked legal title, asserted, by legal proceedings, a claim to the land. The chancellor, in his decree overruling the demurrer to the bill, properly held that, in so far as the doctrine of laches is concerned, this case fell within the influence of the principle which was announced by this court in Fowler v. Alabama Iron & Steel Co., 164 Ala. 414, 51 South. 393, in which case it was said that:

“Since the time when complainant — or its predecessors in interest, if that was the case — came into possession and had been so asserting its equitable title, it has not needed to invoke the affirmative relief of equity, except in response to the action at law now pending. During such time the doctrine of laches had no application to its situation, and doubtless for this purpose, if there were no actual possession, general acts of ownership would be sufficient.”

In this case both parties claim through a common source, viz., George D. Shortridge. As George D. Short-ridge conveyed the entire equity in the land to a corporation through which complainant, by an unbroken chain of title, claims the land, and as there descended to the heirs of said George D. Shortridge only the naked legal title to the land, the complainant, in possession of the land, was under no obligation to file this bill until the respondents, holding the naked legal title, saw proper to assert, in an action at law, their legal title to the land.—Fowler v. Ala. Iron & Steel Co., supra.

It seems plain, therefore, that the chancellor committed no error in overruling the demurrer to the bill.

2. The above discussion leads to the conclusion that the chancellor committed no error in rendering a decree in favor of the complainant granting to it the relief prayed for in the bill. The evidence sustains the allegations of the bill, and we find nothing in the evidence which would justify this court in reversing the decree of the chancellor in granting to the complainant the relief which it sought by its bill. The evidence discloses, however, that only one of the respondents, G. Rotholz, has any interest in this litigation. The other respondents, by their answer, disclaimed any interest in or claim upon the property, and the evidence discloses that they had parted with their interest before the filing of the bill. The chancellor, however, rendered a decree in favor of the complainant against all of the respondents for the costs. In our opinion the decree in this particular should be corrected and a decree here rendered requiring the said G. Rotholz to pay the costs of this cause.

3. It is not inappropriate for ns to call attention to the fact that in this case all of the appellants jointly assigned error. It may he that, under the influence of the rules laid down in Davis, et al. v. Vandiver & Co., 160 Ala. 454, 49 South. 318, and Gilley, et al. v. Denman, 185 Ala. 561, 64 South. 97, the appellant, Rotholz, did not properly present to us for review the questions above discussed. The general rule is that:

“Assignments of error made jointly by all the defendants as to matters prejudicial to some of them only will be disregarded.”—Davis, et al. v. Vandiver & Co., supra; Gilley, et al. v. Denman, supra.

The operation of the quoted rule is invoked' by the appellee in this case; but the rights of the appellee to an affirmance of its decree upon the merits is clear, and we have deemed it unnecessary - to determine whether the rule quoted from Davis, et al. v. Vandiver & Co., supra, is or is not operative upon the assignments of error which we find upon this record.

The decree of the court below is corrected, and as corrected is affirmed.

Affirmed.

Anderson, C. J., and McClellan and Sayre, JJ., concur.