Clark v. Snodgrass

66 Ala. 233 | Ala. | 1880

STONE, J.

When the Branch Bank at Decatur recovered the lands in controversy in the ejectment suit, the result was a judicial ascertainment that the lands were the property of the bank. ' We do not understand that the complainants controvert this, or seek to re-try the questions settled in that suit. The verdict and judgment in that suit had pronounced the several deeds made by Isaac Clark, father of complainants, to be fraudulent, and thus swept them from the field of contestation, so long as that judgment was acquiesced in. There was an agreement of record, when that judgment was rendered, part and parcel of the judgment entry, that if the defendants, or either of them, should pay the amount of the judgment to the bank, and pay three other named judgments, and the interest thereon, then no writ of possession should ever issue on said judgment. The defendants to that suit and judgment were Isaac Clark, William Clark, and James Gullatt; William being son, and James Gullatt son-in-law, of Isaac Clark. The agreement does not disclose, and it is nowhere shown, in what manner the lands were to íce held and owned, if redeemed within the three years. The judgment was rendered, containing the foregoing agreement, in 1847, and the three years expired in 1850. The bank never enforced its judgment, and never sued out a writ of possession. In 1859, John Whiting, at that time commissioner to wind up the banks, conveyed the lands, by deed of quit-claim, to James Gullatt, who had all the while been in possession of the lands, or a part of them. In 1857, before obtaining any title, Gullatt conveyed the lands to Thomas Snodgrass, trustee, to secure the payment of a debt he owed to John Snodgrass, with power of sale in case of default. In 1860, Thomas Snodgrass, the trustee, advertised and sold the lands under the power, and John Snodgrass, the beneficiary, became the purchaser. In 1855, a deed was made by the trustee, Thomas, to John, the purchaser. The bill in this case was filed September 26th, 1876, and seeks to have a trust declared in the lands, for the benefit of the complainants, heirs of Isaac Clark, who died about 1860, or 1861. Snodgrass, Gullatt and others, are made defendants.

If there had been no conveyance of these lands from the bank commissioner to Gullatt, nor from him to Snodgrass, the form of remedy to obtain relief would have bee'n a bill for specific performance. To maintain such a bill, the complainants must have a clear and common right to the relief prayed, and it must be distinctly and clearly charged in the bill.—1 Brick. Dig. 692, §§ 768-9; McDonald v. Ins. Co., 56 Ala. 468; Schaffer v. Lavretta, 57 Ala. 14. If the averments be such, or so vague, as to leave the court in doubt, whether the complainants are entitled to any, and what relief; or, if it be left in uncertainty, whether the complainants are entitled to common relief, then such bill must be pronounced insufficient. Such are the rules, when the bill seeks specific performance, and is not complicated with other transactions. But the case made by the present bill is complicated with other transactions. It seeks to charge, first, Gullatt, and then Snodgrass, as a trustee of the title for the benefit of the heirs of said Isaac Clark, and then to have specific performance, by having the title decreed to the heirs of Isaac Clark. If this relief were granted as prayed for, the said heirs would become tenants in common, and equal owners.

The oi’iginal bill is defective and insufficient in many particulars. It contains these several averments ; “ That after said sale of said lands under said judgments, and the purchase of the same by said bank, the said bank did not take possession of said land, but the said Isaac Clark, who was in possession of said lands at the time of said sale, continued in the possession thereof; the wife and children of the said Isaac Clark remaining upon and in possession of said land, up to the time of the death of said Isaac in the year 1860 ; and after the death of the said Isaac in 1860, his widow, Jemima Clark, and a portion of complainants, continued upon and in possession of said lands, up to the time of the death of said Jemima in the year 1872; and after the death of the said widow Jemima, some of said complainants have continued to reside upon, and remain in the possession of said land, up to the present time, under claim of title thereto, through their ancestor, Isaac Clark. * * * That after the recovery of said lands by said Branch Bank, in March, 1847, the said Isaac Clark continued in the possession thereof, under the terms of said compromise or contract with said bank, for about the period of one year, at which time the said Isaac Clark and the said James M. Gullett entered into an agreement, in substance, and by the terms of which, he, the said Gullatt, was to cultivate and manage that portion of said lands which the said Isaac had previously conveyed to the said Jerusha” [wife of said Gullatt], “and to apply the rents, or the value of the rents thereof, in satisfaction or payment of the said debts described in said judgment and compromise. * * The wife of the said Isaac and some -of his children continued to reside upon and cultivate said lands, or a portion thereof, from the time of said compromise with the bank up to the death of the wife in the year 1872; and after her death, some of the children and heirs at law of the said Isaac have continued all the time, up to the present, in the actual possession of said lands, under claim of title thereto, through their father, the said Isaac, who died in the year 1860. The said James M. Gullatt, under said agreement with the said Isaac, occupied and cultivated that portion of said lands so deeded to the said Jerusha by the said Isaac, from the time said agreement was so entered into, up to the year 1860. In the year 1849, and before the expiration of the three years allowed for paying said bank debt, under said compromise or contract with the bank, the said Isaac Clark and James M. Gullatt paid off and satisfied to said bank the full amount of said bank debt, with the interest thereon.; but none of the other debts described in said contract or compromise with said bank, were paid, or ever have been paid, or otherwise discharged, either by the said Isaac Clark, William C. Clark, or James M. Gullatt, or by any other person for them. * * * Since the execution of said deed to John Snodgrass” [by Thomas Snodgrass, trustee, on the 27th November, 1865], “he has been all the time, up to the present time, in possession of a portion of said lands, claiming title thereto by virtue of and through said trust deed, and the trustee’s sale and conveyance of said lands, under said deed of trust.”

After John Snodgrass took possession under his purchase at trustee’s sale, he must certainly be regarded as holding in his own right, and independently of the complainants in this suit. This constituted his possession adverse; and such possession, according to the averments of the bill, continuing uninterruptedly for more than ten years when the present suit was commenced, he acquired a perfect right to hold the lands so in his adverse possession; and on such right thus acquired, even if it had its origin in tort, he could either maintain or defeat an action of ejectment.—Tayloe v. Dugger, at last term; Smith v. Roberts, 62 Ala. 83; Molton v. Henderson, Ib. 426; Cleveland v. Williamson, 57 Ala. 402. And this defense avails in equity, as at law, and may be raised by demurrer.—Coyle v. Wilkins, 57 Ala. 108; Molton v. Henderson, supra; Bercy v. Lavretta, 63 Ala. 374.

The patent defects in the original bill ate — first, that it fails to aver the payment of the described debts, other than the debt to the Branch Bank ; but, ex industria, avers they are not paid. Such payment, by the terms of the agreement of compromise, was made a condition precedent to the surrender of the lands by the bank. Second, it fails to aver of what lands Snodgrass had held possession since the deed was made to him, and in so failing, leaves entirely uncertain what lands the widow and heirs of Isaac Clark had been in possession of. Third, the bill contains an unmistakable implication that Gullatt, by paying the debts, or large part of them, was entitled to some equity in the lands. Whatever that equity was, Snodgrass became the owner of, by the deed of trust, and sale and purchase under it. The bill not only fails to do equity, but it is fatally wanting in averments to enable the court to understand the rights of these parties. Fourth, the bill is fatally deficient in want of certainty of averment; notably, of the possession of the widow, and some of the children, after 1860, wben Snodgrass purchased. Other very loose averments might be pointed out, but we deem these sufficient.

The amended bill, offered and rejected, attempted to heal some of these imperfections. Others it ignored, while it placed in more prominent light Gullatt’s equity, transferred to Snodgrass, and still makes no offer to do equity.

There are many reasons why the claim of homestead was worthless. Among them, the repeal of the law which conferred it, before the claim was asserted.

Affirmed.