71 So. 92 | Ala. | 1916
The bill is filed by certain heirs of Jane Franklin against her son, Jack Franklin, for a sale for distribution of a certain tract of land owned by her in her lifetime. The answer denies that complainants own any interest in the land, and avers that respondent owns “the entire interest” therein. The evidence shows that Jane Franklin owned the land by virtue of a government patent, and that, in consideration of Jack Franklin’s advancement of $100, with which she procured the patent, she agreed to make him a deed to the land, which she did by a writing dated and delivered to him in December, 1886. This deed is signed by mark only, is without attestation, and the certificate of acknowledgment, though filled in by the notary, is not signed by him. It is conceded that this deed did not convey the legal title to the land. Respondent claims, however, that he has acquired the legal title by adverse possession, and also by prescription.
Two other witnesses say that, as far as they know, respondent had had possession of the land; but it does not appear that
“In the absence of any allegation in the pleadings specially referring to equities, or to an equitable title, it must be assumed that only the legal title is in issue, and that it, when established, must prevail.” — 30 Cyc. 245, 246; 16 Cyc. 403.
“If, on a bill for partition, the defendant wishes to avail himself of an equitable defense, as, for instance, a defense arising under a contract for purchase, he should, to entitle himself to his defense, file a cross-bill, or, under our system, set it up in his answer in the nature of a cross-bill, with a prayer for such relief as he may claim to be entitled to.” — Oliver v. Jernigan, 46 Ala. 41, 44.