O'Briant v. O'Briant

49 So. 317 | Ala. | 1909

DENSON, J.

Appellants contend that this is a bill for the specific performance of a contract for the division of the property belonging to the estate of their and the appellees’ deceased father. The chancellor dismissed the bill for the want of equity, stating in his opinion that the bill would bear no other construction than that it is one to enforce a parol trust in lands. If this construction is correct, of course, the decree of dismissal is well fortified by our decisions, and should be affirmed. — Jacoby v. Funkhouser, 147 Ala. 254, 40 South. 291; Smith v. Smith, 153 Ala. 504, 45 South. 168, and cases there cited.

We confess to having striven to find a phase of the case differing from the chancellor’s view of it, and that would warrant the intervention of a court of equity in behalf of the complainants, but without success, and we are at the conclusion that the chancellor’s is the correct view to be taken of the facts set out in the bill. The bill cannot be sustained as one for the cancellation of a conveyance, for the reason that no facts are stated upon which a decree of that sort might be predicated. Nor do we see that the bill can be amended, so as to give it equity as one for cancellation, without working an entire change of the cause of action. There is no hint, as the bill now stands, of any facts upon which to base a case of cancellation of the deeds.

But it is said that the chancellor should have retained the bill for the purpose of requiring the defendant to specifically carry out the contract in respect to the personal property. Even if the bill is susceptible of this interpretation, yet that the complainants have a complete and adequate remedy at law in this view of the case is certain, and a complete answer to the suggestion. —Lewman v. Ogden, 143 Ala. 351, 42 South, 102.

The decree of the court dismissing the bill must be affirmed.

Affirmed..

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.