48 Ala. 81 | Ala. | 1872
The bill in this suit alleges, among other
Erom this decree the complainant, said Camp, who is appellant in this court, brings the case here by appeal, and assigns the action of the court below as error.
I purposely avoid any expression of opinion in this discussion on the validity or invalidity of the proceedings in said court of probate, as to the probate of said will or the setting the same aside as null and void, or as to the validity or invalidity of said sale of said lands to said Camp. These are questions not necessarily involved in the discussion of this case, as the same is presented in said original bill and said cross-bill.
Passing from this part of the discussion without further-remark, it is obvious that the bill in this case can not be-maintained, in whatever light it may be viewed. Mrs. Elston’s sale of the lands mentioned in her deed to Camp was made without an order of court, but under the power given her by the will. If the sale made by Mrs. Elston was valid, as is insisted in the complainant’s bill, then her deed was. valid, and it passed a good title to Camp, and his remedy
The original bill having been dismissed, the cross-bill became a mere attempt to collect the rents of the lands in controversy, for use and occupation, during the time the same had been in the possession of Camp under his deed. If the deed was valid, there was no rents due. If it was invalid, as the complainants in the cross-bill insist, then there was a sufficient and well ascertained remedy at law. Rev, Code, § 2(307. For this reason, the cross-bill should also have been dismissed; but both without prejudice to an action at law, in favor of the parties to the original or the cross-bill.
The learned chancellor, then, erred in retaining the cross-bill. For this error, the judgment of the court below is reversed; and this court, proceeding to render the judgment that should have been rendered in the court below, doth order, adjudge and decree that the said original bill and said cross-bill be dismissed out of this court, but without prejudice to any action at law or in equity that the parties to this suit may hereafter choose to institute touching the matters in controversy in this suit. And the costs in this court and the court below will be divided between the parties.