McDaniel v. Turnipseed, 51 So. 757

McDaniel v. Turnipseed

51 So. 757 | Ala. | 1910

SIMPSON, J.

— The record shows that the pleadings were filed, and that by written agreement, filed according to law, the cause was submitted to the chancellor, in vacation, for a decree on the demurrer to the bill, and the decree rendered in vacation. Consequently no further organization of the court need be shown, and the motion to dismiss the appeal is overruled.

The bill was filed by the appellant to reform a deed made to complainant in 1879 by John Campbell and wife, making the heirs of said Campbell parties defendant, and also alleges that complainant went into possession of the land intended to be conveyed at the time of the execution of said deed, that the correct boundaries were marked, and complainant remained in possession, and never learned of the mistake in the description of the land in the deed, until a few months ago-; that one D. G. Turnipseed, who owns land adjoining the land in question, had a survey made a few years ago, to which complainant was not a party, and took.possession of a strip of about eight acres of said land, obliterating the boundaries which had been marked out. On this state of facts, in addition to the prayer- for a reformation of the deed, so as to describe the land intended to be conveyed, the bill also prays that “a commission be appointed to establish and define the boundary line between the land of complainant and the land of said D. 0. Turnipseed,” that the boundary line be established, and that a decree be rendered in his favor against said Turnipseed for rents, etc.

*191It will be seen tliat tlie bill brings into court two distinct panties, having no connection with each other. Is seeks against one the reformation of a deed, in which the other party has no interest, and seeks against the other the establishment of the boundary line between said party and complainant, and also to compel an accounting for rents on account of a strip of land which it is claimed said party has taken from the possession of the complainant, in all of which the first parties defendant have no interest at all. It is not necessary to enter into an elaborate discussion of the doctrine of multifariousness, to sIioav that the bill is multifarious. ■ — Bentley et al. v. Barnes, 155 Ala. 659, 47 South. 159; Sims’ Chancery Practice, § 232 et seq.

Section 3095 of the Code of 1907 has no application. The matters complained of are not only not “between the same parties,” but they do not grow “out of the same subject-matter,” nor are they “founded on the samé contract or transaction.” The chancellor correctly sustained the demurrer of Turnipseed on the ground of multifariousness, and his decree is affirmed.

Affirmed.

Doaaodell, C. J., and McClellan and Mayfield, J.J., concur.