Tucker v. Tucker

This appeal is from an interlocutory decree of the Circuit Court, sitting in equity, granting the motion of the defendant, W. C. Brady, to dissolve the temporary injunction issued upon filing the bill, and sustaining said defendant's demurrer to the bill.

The sole purpose of the bill, so far as Brady is concerned, is to enjoin the prosecution of an ejectment suit by Brady for the recovery of the possession of the lands described in the bill, and to quiet the complainant's title as against Brady.

The bill alleges that the complainant is the owner of the lands, has the legal title thereto, and is in possession thereof through his tenants.

The bill is without equity in so far as the defendant Brady is concerned. Wilson v. Miller, 143 Ala. 264, 39 So. 178, Ill Am.St.Rep. 42, 5 Ann.Cas. 724; Lehman, Durr Co. v. Shook,69 Ala. 486, 492; Hall v. Slaughter, 155 Ala. 625, 47 So. 103; Dailey v. Koepple, 164 Ala. 317, 51 So. 348; McCormick et al. v. McCormick et al., 221 Ala. 606, 130 So. 226; Stewart et al. v. Carnell et al., 235 Ala. 636, 180 So. 307.

Brady is not a party to the mortgage which the bill seeks to foreclose, hence Carpenter et al. v. First Nat. Bank of Birmingham, 236 Ala. 213, 181 So. 239, is not an apt authority to sustain the equity of the bill as against Brady.

The decree of the circuit court is free from error.

Affirmed.

GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.