Ryall v. Prince, 71 Ala. 66

Ryall v. Prince

71 Ala. 66 | Ala. | 1881

Lead Opinion

STONE, J.

On the first submission of this cause in the Chancery Court, the chancellor dismissed the bill on the merits, holding that the conveyance executed by Prince and wife to Hargrove passed a good title; and that Byall, having purchased that title, himself had a good title. On appeal to this court the decree of the chancellor was reversed, and the cause remanded. We held that the complainant, Mrs. Prince, was entitled to relief as to all the lands, except one hundred and sixty acres, the title to which had been in John H. Prince, her husband. This one hundred and sixty acres may be styled the Clover purchase. As we have said, we remanded the cause for further proceedings therein. There was a demurrer to the bill as filed, and also a motion to dismiss for want of equity. The particular ground of the motion to dismiss was, that Mrs. Prince, according to the averments of her bill, had a complete *70and adequate remedy at law, and, therefore, her bill ought to have been dismissed. On the return of the case to the Chancery Court, after the reversal here, the motion to dismiss for want of equity was again pressed upon the chancellor, and being overruled by him, it is here assigned as error; and we are asked now to dismiss the bill, because, as to all the lands except the (Rover purchase, Mrs. Prince had a plain and adequate remedy at law. We have declared that Mrs. Prince is entitled to no relief as to the land bought of Glover; and as to all the other lands, she is entitled to relief. — Prince v. Prince, 67 Ala. 565.

It is contended for appellant that when this case was before in this court, the only errors which were or could be assigned were in behalf of Mrs. Prince, because she alone appealed, and would not contend that her bill was wanting in equity. On this ground it is here contended that the question of the equity of the bill was not, and 'could not then be considered. This is, to some extent, a misapprehension of the rule in such cases. The question depends on the ruling in the court below, whether granting or denying relief to the extent claimed, and, also, on another question, to be presently considered. If the chancellor below refuses relief, and dismisses complainant’s bill, either assigning no reason, or placing his decree on a ground which is untenable, then our rule is to inquire whether the bill contains equity. If it be substantially wanting in equity — a non-amendable defect — we affirm the decree, holding that the iudgment is right, but placed on a wrong reason or ground. 'If there be a defect in the bill which is amendable — such as want of parties, the incorporation of improper parties, or a variance between the allegations and proof — we reverse and remand, noting the defect, that the complainant may have an opportunity to amend in the court below. This privilege is not extended, however, if by a ruling in the court below, made either on motion or demurrer, the defect has been pointed out, and the complainant made no offer to amend.—Bobe v. Stickney, 36 Ala. 482; State v. Rice, 65 Ala. 83; Gibbs v. Hodge, Ib. 366; Smith v. Connor, lb. 371; McDonald v. McMahon, 66 Ala. 115; Sims v. Sampey, 64 Ala. 230.

Applying these principles to ‘this case, if, when the case was before us at the last term—Prince v. Prince, 67 Ala. 565— we had thought Mrs. Prince had a complete and adequate remedy at law, we would neither have reversed nor remanded the cause. The bill being without equity, and 'not amendable, the case would have presented the familiar principle of a judgment announcing the proper result, but for a wrong reason. Our judgment in that cause, reversing and remanding, wasñtself an. affirmation that the bill contained no incurable defect, and that *71the motion now pressed is without merit. We follow the ruling in Boyleston v. Farrior, 64. Ala. 564, and hold that Mrs. Prince’s bill is not without equity.

In decreeing rents to complainant, the chancellor erred. She can not recover, them, as they were and are payable to her husband.' — Whitman v. Abernathy, 33 Ala. 160; Lee v. Tannenbaum, 62 Ala. 501.

The decree of the chancellor is reversed and here rendered, decreeing to her the lands which the chancellor awarded to her, and withholding relief as to rents. The defendants below will pay the costs of the original suit, and the appellee and her next friend must pay the costs of appeal.

Dissenting Opinion

BRICKELL, C. J.

dissenting. — The purpose of this suit was the recovery of lands, the statutory separate estate of the complainant. The recovery of rents and profits was a mere incident ; as essentially an incident, as the recovery of mesne profits in an action of ejectment, or in a statutory real action. When the recovery of rents and profits is a mere incident of a suit by the wife for the recovery of the corpus of her statutory separate estate, she is entitled to recover them. — Pickens v. Oliver, 29 Ala. 528.