44 So. 679 | Ala. | 1907
The Louisville & Nashville Railroad Company filed this bill in the city court of Talladega on
It is important to determine first the nature and extent of complainant’s interest in the lands, before proceeding to the discussion of other questions presented for consideration. Complainant alleges that its interest is a resulting trust. Resulting trusts, says Mr. Pome-roy, “arise where the'legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent in theory of equity appears or is inferred or assumed from the terms of the disposition, or from accompanying facts and circumstances, and that the beneficial interest is not to go with the legal title. In such case a trust ‘results’ in favor of the person for whom tlie equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.”. • — 1 Pomeroy’s Eq. Jur. (3ct Ed.) § 155; 3 Pomeroy, § 1031. The same distinguished author gives this illustration of a resulting trust: “Where a purchase has been made, and the legal estate is conveyed or transferred to A., but the purchase price is paid by B.” — 3
It is urged by the respondent (appellant) that the trustee is the only necessary party to the condemnation proceedings, and that upon it devolved the duty of making all the defenses against the application, for the protection of the rights of the cestui que trust, that could have been made, and that in the absence of an averment in the bill that the trustee would not protect the interest of the cestui que trust, or that it had refused to do so, the bill is without equity, and no groud.is shown for an injunction. Section 1713 of the Civil Code of 1896, as the same is amended by an act passed at the session of ■1903 of the Legislature and approved' October 1, 1903 (Gen. Acts 1903, p. 347), requires that applications for the condemnation of lands “must describe the several tracts and state the names and residence of the owners of each tract, if known, or, if unknown, must show that reasonable diligence has been used to ascertain the
By an act of tbe Legislature of New Jersey a railroad company was given power to condemn lands. Tbe charter required that tbe application for tbe condemnation should describe tbe lands, and set forth tbe names of tbe occupant or occupants, if any there by, and of tbe owner or oAvners, if known. Tbe application was required to be filed with a justice of tbe Supreme Court, who should cause tbe applicant to give notice to tbe persons interested, if known. It was held, in construing tbe charter, that it plainly distinguished between tbe owner and per
It seems that the Legislature, in using the word “owner,” without more, intended to confine the proceedings to the legal title; and there is good reason for this. The proceedings are to be prosecuted in a court of law, without equity jurisdiction to adjust the equities which may exist, and in many instances it would he utterly im
The appellee, it seems, is operating under a charter obtained under the general laws of the state, and therefore possesses no express powers to take and condemn the property of another railroad corporation which is already devoted to a public use, and which, according to the bill, cannot be condemned without material interference with that use; nor does such power arise from necessary implication. Therefore the rule as stated in the case of Mobile & Girard R. R. Co, v. Midland Ry. Co., 87 Ala. 501, 507, 6 South. 404, in reference to determining the respective rights of the parties, is applicable; and we content ourselves with the reference to that case, without going into a further discussion of the rule. If the complainant Avas possessed of the legal title to the premises, it is very clear that, were it a party to the condemnation proceedings, it could defend against the condemnation of the land by bringing itself within the rule above referred to; and it may be that, if the deed to the Louisville Property Company created an express trust, it could make the same defense in behalf of the cestui que trust. This point, however, we do not decide. But the deed on its face purports to convey the absolute title to that company without any intimation of a trust estate. The estate claimed by the complainant, we have seen, is an equitable one, which courts of law take no cognizance of, and in respect to which they cannot afford adequate relief. It is a proposition of universal application that courts of law never take cognizance of cases in which the primary right, estate, or interest to be maintained, or the violation of which is sought to be redeemed, is purely equitable, unless such power has been expressly conferred by statute.” — 1 Pomeroy’s Eq.
In this view the Louisville & Nashville Bailroad Company, OAvning only an equity, and that dependent on parol proof for its establishment, and its establishment cognizable only in a court of equity, Avould be met at the very threshold of the court of law (in its attempt to show its defense against the condemnation) Avith the proposition that it had no estate or right cognizable in that court, and that it must first establish the estate in a court of equity. This principle is illustrated and enforced in a line of cases decided by this court in which, before the statute allowing a claimant in a suit for the trial of the right of property to recover on an equitable title, and prior to the “married woman’s laAv” of 1887, it was held that, “when property is seized under process against the husband, which the wife claims under sale or gift by or conveyance from him to her, neither she in her OAArn name nor in the name of the husband as trustee can defend on such title in a trial at law of the right of property.” — Bush v. Henry, 85 Ala. 605, 5 South. 321; Loeb v. Manasses, 78 Ala. 555; Snediker v. Boyleston, 83 Ala. 408, 4 South. 33.
On these considerations it is manifest, and must he held, that if the Louisville & Nashville Kailroad Company had been made a party to the proceding in the first instance, or could have become a party by intervention,
On the case presented, we are of the opinion that the complainant’s bill "is not without equity, and that complainant was entitled to the temporary injunction; and this, without here deciding whether or not the land in question is subject to condemnation for the uses claimed by the appellant. That question cannot, of course, be considered and determined until after issue joined on the merits, and evidence taken and heard in the due course of procedure. This does not, as suggested by appellant’s counsel, transfer the jurisdiction to condemn lands from the probate to the chancery court. If the city court, on the final hearing, should determine that the appellant is not entitled to have the land condemned as against complainant, of course, the injunction will be made perpetual against the condemnation procedings in respect to the particular land in controversy. On the other
Tbe points we bave discussed are tbe only ones we deem necessary to be considered. It follows that tbe decree of tbe city court will be affirmed.
Affirmed.