Sawyers v. Baker

66 Ala. 292 | Ala. | 1880

SOMEBYILLE, J.

The wife of the appellee, Mrs. Baker, was an indispensable party to the bill, either as complainant or defendant.-’ If the husband converted her statutory separate estate, and made the purchase of the land in his own name, no one except the wife could complain of his effort to enforce specific performance against the vendor, by compelling a conveyance by deed directly to himself. Yet, as she could and might object to.the transaction, and elect to claim a conveyance to herself instead, she should have been made a party to the suit, both for her own protection, and that of Boone and his co-defendants, who were liable to be harassed by another suit about the same subject-matter. If she freely assented to the purposes of the bill, she was a proper party complainant; otherwise, she should have been made a defendant.—Pitts v. Powledge, 56 Ala. 147; Michan and Wife v. Wyatt, 21 Ala. 813; Hitchcock v. U. S. Bank, 7 Ala. 388.

The objection raised by the demurrer is, that Mrs. Baker was a necessary party complainant only, and not defendant. Yet, where a party is so indispensable that the cause cannot be properly disposed of without his presence, the objection need not be raised by plea or demurrer, but may be made at the hearing, or on error, or may be taken by the court ex mero motu.—Prout v. Hoge, 57 Ala. 28; 1 Brick. Dig. 754, § 1706.

The appellee, Baker, was the purchaser of a mere equitable, and not of- a legal title ; yet his possession of the laud was a,fact that charged all subsequent purchasers with notice, and was equivalent to registration.—Brunson and Wife v. Brooks, at the present term. His equity would, therefore, be superior to that acquired by the appellants, Sawyers and Gamble, under their mortgage from Boone, if his purchase and possession were prior to such mortgage, and he paid the purchase-money before it was executed and delivered, which time is stated to be January 16th, 1876. The bill, however, was defective, in failing to state these facts with sufficient clearness.

Other questions are discussed by counsel; but uo other poiuts than those above determined are properly raised for our consideration by the record. Eor these reasons, the demurrer was improperly overruled, the decree of the chancellor is reversed, and the cause remanded.