40 So. 1028 | Ala. | 1905
The bill was filed by Fisher H. Merrill, as the administrator of the estate of Lucy G. Merritt, deceased, on the 22d day of June, 1904, in favor of himself as such administrator and of all stockholders in the corporation that was known as the Montgomery Mining & Manufacturing Company who- might come in and make themselves parties complainant to the bill and contribute to the expenses of conducting the suit. The facts of the case are briefly these: On the 21st day of February, 1860, The Montgomery Mining & Manufacturing Company wa| incorporated by an act of the Legislature of Alabama. ’ The capital stock of the corporation was fixed at $100,000 and was divided into shares- of $100 each. The names of all the stockholders are set out, with the amount of stock owned by each of them. F. M.'Gilmer,
We will for convenience refer to the Clay county parties as the “'Clay county defendants” in this opinion. The Clay -county defendants severally demurred to the bill and moved to dismiss it for the want of equity.- The chancellor in vacation, on the 12th day of September, 1904, rendered a decree dismissing the bill for the want of equity as to the Clay county defendants, without allowing any time for amendment to the complainant. No notice was taken of the demurrers in the decree. On the 27th day of September, 1904, the complainant made application for a rehearing*.. It appears from the record that the chancellor on the 31st day of October handed down an opinion in which he concludes that the bill was properly dismissed; but it seems that no- decree overruling said application was enrolled or entered on the docket, so- on the 28th day of December, 1904, the court handed down and had enrolled a decree overruling said application, in which is recited the. fact that a decree was signed on the 7th day of November, overruling the application for a rehearing, but that said decree was not filed in the cause, nor noted on the docket, nor enrolled upon the minutes of the court.. On the 2d day of January. 1905, the complainant, perfected an appeal from the decree dismissing the bill as to the Olay county defend-' ants to this court, which appeal has been duly certified by the register. On the 16th day of March, 1905, the bill was amended by making Charles B. Teasley administrator ad litem of the estate of all the deceased stockholders,
The assignments of error made by the1 appellant Merritt relates to the dismissal of the bill for the 'want of equity as to the Olay county defendants. On the application for the rehearing made by the complainant to the court after the rendition of the decree dismissing the bill as to the Clay county defendants for the Avant of equity, the chancellor on the Slst o-f October, 1904, handed down an opinipn justifying the decree dismissing the bill. The reasons for dismissing the bill for the Avant of equity are clearly pointed out in the opinion. We have critically examined, in connection Avith authorities upon which they are based, the argument and brief of counsel for appellant.Merritt- in opposition to the conclusion reached by the chancellor, and Ave adopt the opinion of the chancellor in part as the opinion of this court: “The decree dismissing the bill as to these defendants may be justified on either one of tAvo entirely different, grounds. If it contains no equity a,s to them, it must be dismissed as of course. If, containing equity, it is multifarious by reason of their joinder as parties defendant, it must be dismissed. The bill affirmatively shows that the venue as to these defendants is in Clay county. The bill could never be amended by eliminating the other parties defendant, so as to proceed against
In no aspect of this bill, considered with reference to these defendants, does it show any disturbances of the complainant’s rights. “A mere fear of suit, or that another merely questions one’s title, or even asserts a hostile title, will not justify the court in interfering and compelling litigation which might not otherwise arise.” — Rea v. Longstreet, 54 Ala. 594. The bill can have no help from the statute to compel the determination of claims to lands and to quiet title. Complainant’s possession, actual or constructive, is material, and must be averred. To quote Lord Chancellor Redesdale again: “A mere simple assertion of title is nothing upon which the court can proceed.” — Devonshire v. Newenham, supra. In that case the devisees had filed a bill to carry the trusts of a will into execution, and had made Newenham a party defendant upon the allegation that the trustees in the will, in order to relieve the estate of debts, had advertised the demesne to be let, but were prevented from proceeding in consequence of advertí,semnts which were published in the the newspapers by Newenham, cautioning the public against taking the demesne, and male
Complainant, as supporting his contention, seems to lay considerable stress upon the case of Hefner v. Life Insurance Co., 123 U. S. 747, 8 Sup. Ct. 337, 31 L. Ed. 309. That was a case of a collateral attack by an action of ejectment at law on the decree of a court of equity barring and foreclosing all interest of a party AArho has been brought into the case for the foreclosure of a mortgage on the mere general allegation that he claimed some interest in the mortgaged property. The defendant had suffered a decree pro eonfesso to go against him in the court of equity. At law ho relied upon a title which had no connection Avith the mortgage. It Avas held that the decree in chancery barred his suit at Iuav. Plaintiff’s attack upon the decree, being collateral, Avas equivalent to the ascertion that it had no validity Avhatever. The effect of the decision Avas that, the averment that plaintiff claimed an interest AAras a sufficient basis for amend
We have not overlooked the averment, to be found in the bill, that whatever interest the defendants have is inferior and subordinate to the claim and right and title of the defunct corporation and the stockholders represented by complainant. This allegation could have no possible meaning which would affect anything already said in respect to the essential defect in the bill. It is a
The citation by complainant of quite a number of mortgage cases seems to lend color to the idea that the allegation under consideration may have been intended to convey a suggestion that these defendants are proper parties in the same Avay, and for the same or an analagous reason, that subsequent incumbrancers are proper parties to mortgage suits into Avhich they may be brought by the general allegation that they are subsequent incumbrancers and claim some interest. The practice is in virtue of rule 108 of chancery practice. In some of the states there are statutes to the same effect. No one need question the equity of a bill framed under such authority. But the rule is by its terms limited to
It may be conceded that the allegation that these defendants claim some interest implies the probability of a further definition; but there is no assurance that the possession of the land may be alleged to be Avith either complainant or these defendants, or elseAidiere than it iioav is by construction of la,AV. “And it is only AAhen it appears from the bill that amendments can be made Avbieh Avould entitle the complainant to relief that such amendments avüI be considered as made, and the motion to dismiss for Avant of equity aauII be denied.”- — Tait v. A. M. Co., 132 Ala. 200, 31 South. 625 ; Gardner v. Knight, 124 Ala. 273, 27 South. 298 ; Bell v. Sou. H. B. & L. A., 140 Ala. 371, 37 South, 237, 103 Am. St. Rep. 41. Some of the considerations heretofore stated would contribute materially to the argument that the bill is multifarious by reason of the joinder of these defendants as parties under the circumstances shoAvn in the bill, eAren though the conclusion drawn that the bill is wanting in equity, as against them, -be erroneous. — Colburn v. Broughton, 9 Ala. 362, and Bullock v. Knox, 96 Ala. 199, 11 South. 339, lead to the conclusion that the bill is multifarious for the misjoinder of these defendants. This defect in the bill, considered in connection Avjth the shoAvn Arenue in Clay county makes it proper to dismiss the bill for the Avant of equity.
“The decree Avas in vacation. Rut the bill Avas not dismissed on demurrer. It Avas dismissed for the Aiumt of equity on motion made for that purpose. The reason of the decisions on this point indicates that a dismissal for Avant of equity, AAdiere the equity of the bill is directly challenged, is as proper in Aracation as term time. — Bishop v. Wood, 59 Ala. 253 ; Kingsbury v. Milner, 69 Ala. 502 ; Stoudenmire v. DeBardelaben, 72 Ala. 300. Shackelford v. Bankhead, 72 Ala. 476, may seem to indicate to the contrary. Rut in that case the court may not have had in mind the distinction draAvn in Tait v.
In this view of the case we deem it unnecessary that we should consider the equities of the case on any other grounds set out in the motion to dismiss the bill. It is clear to our minds that the Clay county defendants, having been turned out of court before the rendition of the final decree on March 16, 1905, are in no wise affected by the decree, and the assignments of error by them with respect to that decree cannot be sustained.
The decree of the chancellor dismissing the bill as to the Clay county defendants Avas the want of equity is corrected, in that a decree aaíII be here rendered dismissing the bill Avithout prejudice, and, as corrected, is affirmed. The costs of the appeal from the decree must be paid by the appellant. The cross-appeal by the Clay county defendants is dismissed at their costs.