67 So. 684 | Ala. | 1914
The bill in this case was filed by appellant, for the cancellation of a certain negotiable' note, not then due, executed by him and payable to respondent Randolph Sandlin, who claimed to be the guardian of one James A. Sherrill, a non compos mentis, on the ground of fraud in its procurement, and on the further ground that there was no consideration therefor. The equity of the bill was not questioned.—So. States Fire Ins. Co. v. Whatley, 173. Ala. 101, 55 South. 620; Ahlrichs v. Parker, 187 Ala. 227, 65 South. 815; Merritt v. Ehrman, 116 Ala. 278, 22 South. 514; Andrews v. Frierson, 134 Ala. 626, 33 South. 6. Respondent Randolph Sandlin was made party to the suit individually, and as guardian of James A. Sherrill. His answer disclosed only an interest in the cause as guardian for said Sherrill, and the answer was made a cross-bill.
The chancellor found from the evidence that the charge of fraud in the procurement of the note was not sustained. A careful review of the record convinces us that in this conclusion he was very clearly correct, and we content ourselves with this statement, without entering into any discussion of this feature of the bill.
Although, from -this record, we may be inclined to the view that James A. Sherrill was the owner of only a life estate in said 160 acres of land, yet (as hereinafter appears, complainant’s only claim of title is through said Sherrill) it is in fact, so far as concerns the result of this case, immaterial whether said Sherrill was the owner in fee of the land or the owner of only a life estate.
While there is some conflict in the evidence, we are well convinced of the following facts as the established truth of this case: James A. Sherrill executed his mortgagé on said. 160 acres of land, to one Echols, for $100,
We have made no effort 'to set out this evidence in detail, but have merely, in a general way, attempted to' state the facts, of the truth of which we are convinced by this record.
“A tenant while occupying the leased premises. is estopped from denying the title of the landlord, and before he can assert a title to the rented premises in
See, also, McLeod v. McEachern, 187 Ala. 239, 65 South. 790.
True, the bill in this case is not filed to remove a cloud on title, but for cancellation of the rent note, yet the very ground for relief insisted upon rests upon the assertion of legal title in the complainant, the tenant, as in hostility to the landlord, and such title is thus sought to be directly involved.
In what we have here said, it has been assumed (which we hold is- established by the evidence) that there was no fraud or misrepresentation, and that the note was executed after full consideration and with full knowledge by the complainant.
The chancellor held that the agreement between complainant and Sherrill, followed by the use of the land for the year 1906, worked a redemption of the same. Whether such could be considered as the effect of such agreement and consummation thereof, or whether such agreement would fall under the doctrine of Deming v. Lee, 174 Ala. 410, 56 South. 921, as to resulting trust, or what in fact was the effect thereof, need not be, and is not determined.
We are persuaded that the complainant, under the evidence in this case, is in no position to say that the note is without consideration, for the reason that he had the title to the land. The decree dismissing the bill was proper.
(4) The administrator of Sherrill, in his cross-bill, sought a cancellation of the foreclosure deed made to complainant, and also' sought a personal judgment against him for the balance due on the note. The chancellor refused to give relief upon the cross-bill, as to cancellation of the deed, for the reasons stated in his decree, hut did order a reference to ascertain the balance due on the note to the end of granting a personal judgment against complainant. There is no cross-appeal, but the appeal is by the complainant only. We are therefore only to review the action of the court in ordering the reference to the end of entering a personal judgment for the balance due. It is, of course, clear that such’ feature of the cross-bill contains no independent equity. It is the general rule, established by the decisions of this court, that a cross-bill which shows no equitable relief growing out of the subject-matter of the original bill, and which has no independent equity which would sustain the jurisdiction of the court, is carried out by the dismissal of the original bill.—Myer v. Calera Land Co., 133 Ala. 554, 31 South. 938; Etowah Mining Co. v. Wills Valley, etc., Co., 121 Ala. 672, 25 South. 720; Contmentl Life Ins. Co. v. Webb,
Corrected and affirmed.