Garrett v. Lynch, 44 Ala. 683

44 Ala. 683 | Ala. | 1870

PETERS, J.

The complainant in a bill in chancery is not only a pleader, but also a witness. He is entitled not only to make a clear and orderly statement of the facts on which his suit is founded, but so far as this statement is not denied or contradicted by the answer of the adverse party, it is to be taken as proved or admitted. — Gresham’s Eq. Ev. pp. 8, 9; Rev. Oode, §§ 3327, 3390, 3391. But that eminent good faith, which is a prevailing principle in courts of equity, requires that the statement thus permitted should be fairly made, without attempt at suppression or evasion. When this is not done, it leaves room for very great uncertainty in the mind of the court, when seeking to ascertain the true import of the allegations made in the bill. Here the statement of facts in the bill upon which its equity is based, is seemingly that the order of the probate court for the sale of the lands of Thomas Lynch, deceased, was so irregular as to be void, for want of conformity to the statute. — See Satcher v. Satcher’s Adm’r, 41 Ala. 26. But there is no allegation that this irregularity was unknown to the complainants at the date of the judgment, which is sought to be enjoined, or at the time of the sale. If the note on which the judgment was founded was without consideration, void or fraudulent, as is stated in the seventeenth and eighteenth paragraphs of the bill, this was a sufficient and well ascertained defense at law. — 1 Parson’s on Cont. 853, et seq.; 2 ib. 879. It was, therefore, necessary to allege in the bill, that some competent reason intervened to prevent the interposition of such defense, upon the trial at law, This additional allegation was required to sustain the equity of the bill. If there was a valid defense at law, then there should have been an excuse shown for failing to plead it. This is not done. The bill, then, is without equity in this particular —McCollum v. Prewett, 37 Ala. 573; Weaver v. The State, 39 Ala. 535; French v. Garner, 7 Porter, 549. This deficiency in the bill was sufficient to justify the dissolution of the injunction. — Cave v. Webb, 22 Ala. 583.

But, eveji if this were otherwise, the facts upon which the equity of this case is presumed to rest are fully and directly met and denied in the answer of Lynch, the administrator. This would authorize the injunction to be dissolved. — Hilliard on Inj. p. 99, § 53; Saunders v. Cavett et al., 38 Ala. 51; Hogan v. Branch Bank, (at Decatur,) 10 Ala. 485; Dunlap v. Clements et al., 7 Ala. 539.

Then, without going further into the merits of the case, we feel constrained to approve the action of the learned chancellor, in the court below, in dissolving the injunction. His decree is therefore affirmed, with costs of the appeal in this court and the court below,