Hereford v. Hereford

134 Ala. 321 | Ala. | 1901

TYSON, J.

It is entirely clear that we cannot, on this appeal, review the rulings of the chancellor in denying the motion to discharge the receiver and in refusing to increase the penalty on his bond. It is true an appeal lies, when taken within thirty days, from the order appointing the receiver. — 'Code, § 429. 'But this was not done. After the expiration of the thirty days from tire filing of the order appointing the receiver, the. respondent made the motion sought by this appeal to have reviewed. This we have no> power to do. — Miller v. Lehman, 87 Ala. 517. Nor can we review on this appeal the former interlocutory decree overruling the motion to dismiss the bill for want of equity. So, then, the only matter for. consideration is, the decree overruling the special grounds of demurrer assigned to the bill.

The manifest purpose of the bill is to preserve through a receivership the rents issuing out of the lot pending the action of ejectment brought by complainant against the respondent, who it is alleged is insolvent, predicated upon the theory that complainant is the owner of it. Whether the allegations of the bill sufficiently show that he is the owner of the lot sought to be recovered in the action of ejectment brought by him, is not, as we will show, raised by any of the grounds of the demurrer. The first of these assigni as an objection to the bill that complainant has an adequate remedy at law. Confessedly if the bill was to cancel the deed as a cloud upon complainant’s title to the Ion or otherwise sought a recovery of it, the ground would be well taken, if the averments of the bill disclosed he had the legal title, or if he had title but was out of possession. But the bill is not in: any sense a bill to cancel the deed made by complainant to respondent, nor does it in anywise seek to recover the lot in this suit. Complainant, admits, by its averments the adequacy of the legal remedy, which is being pursued by him to recover possession of the lot, but this is far from having an adequate remedy to protect himself against the loss of the rents, to which he will be entitled, in the event of recovery in the action of ejectment. While it is true in his action of ejectment, if he recovers the lot, he will also be entitled to recover rents or mesne profits, yet in view of the insolvency of the defendant the law furnishes no adequate protection and remedy to him to prevent the loss in the meantime. — Mortgage Co. v. Turner, 95 Ala. 272.

The invalidity of the deed executed by complainant to respondent to the lot in controversy in the action at law now pending, is asserted in the bill to be because of the uncertainty and indefiniteness- ini description- of the lot described in it, and not on account of fraud in its execution or incapacity to malee it. It is true that it is ■ averred in the fourth 'paragraph that complainant received a fall which resulted in serious injury to his physical and mental condition, incapacitating him from pursuing his avocation, but it is not averred whether this occurred before or after the deed was executed. But whether before pr after, it is not relied upon as a ground for invalidating the deed. So-, too, it- is averred in the fifth paragraph that respondent by continuous persuasion and harassment, so overcame the free agency of complainant as to- induce him to sign the deed. But this averment is not relied upon as avoiding the deed. And it may be conceded, and. for that matter it nius-t be, that both of the averments are wholly insufficient. And had the second and third grounds of the demurrer been-interposed to these paragraphs instead of to the whole bill, they wo-uld, doubtless, have been sustained. But as they go- to the whole bill and as the averments are not relied upon to- support the -equity of the bill, they were properly overruled.

The sufficiency of the averment upon which the equity of the bill rests, not being raised by the demurrer, we must decline to- consider it. For the same reason we must decline to enter upon a discussion of the question as to whether the bill shows any right in complainant to maintain the action o-f ejeememt.

Affirmed.