139 So. 569 | Ala. | 1932
The bill was for injunction to prevent the sale under execution of complainants' lands. Demurrers thereto were overruled; hence this appeal.
The grounds of demurrer were to the effect (1) that the bill does not allege that R. T. Granger did not know of the judgment within thirty days after its rendition; (2) that the bill does not allege that he had a meritorious defense to said suit and the note declared upon; (3) that complainants had an adequate remedy at law; (4) and that there was a misjoinder of parties complainant.
Considering these questions in inverse order, there was no misjoinder of parties complainant. They were the respective grantor and grantee in conveyance of the land and the deed containing covenants of warranty of title, against incumbrances, that the grantor had the right to sell and convey the same and would warrant and defend the title to the same to the said D. G. Howard, cocomplainant, his heirs and assigns forever, against the lawful claims and demands of all persons. It was the land sought to be levied upon and sold pursuant to the judgment in question as the land of the grantor and without due notice of the judgment on which the execution issued. Moreover, appellant does not sufficiently argue this ground of demurrer. Georgia Cotton Co. v. Lee,
The prayer of the bill sought to have the judgment in question, its record in the probate office and in the minutes of the circuit court of Houston county, "be held as *210 naught and void against him (complainant Granger) and his property," and sought general relief to which "they may be entitled under the allegations of their bill," as to both complainants.
The facts averred make a case for equitable cognizance to remove a cloud from the title of real property. Section 9905, Code, and authorities cited; Fowler v. Alabama Iron Steel Co.,
It has been held that an instrument void on its face is incapable of creating a cloud on the title. Bell v. McLaughlin,
It will require extrinsic evidence to show that the judgment as recorded in the probate office was not based on service as required by law. See Wood v. Estes, ante, p. 140,
The decisions that require averment and proof that the defendant, seeking to avoid a judgment for the lack of service, had a good defense in law, and of what the defense consists, are without application to the case in hand, where the lack of jurisdiction of the defendant is sought to be shown. Stephens v. Bruce,
In cases cited, as Barton v. Burton Mfg. Co.,
There is no merit in the demurrers to the bill, and the judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.