Lead Opinion

Initial proceeding was by suit on the law side of the circuit court and was for statutory ejectment in which J. W. Hill was plaintiff and G. E. and Minnie Stover were defendants. After execution of process, defendants by way of petition set up an equitable defense and indicated that Dora Chaney was a necessary party in interest as to a portion of the land sued for.

On consideration of the petition it was ordered that the cause be transferred to the equity side of the circuit court, under provisions of the statute (Gen. Acts 1915, p. 831, § 2), which cast upon the presiding judge the duty of deciding in which forum such cause should proceed and be disposed of. Claborne v. Nichols, 204 Ala. 282, 85 So. 415; Ellis v. Drake, 206 Ala. 145, 89 So. 388.

In attempting to recast the pleading in conformity with the requirements obtaining in courts of equity, the plaintiff, Hill, stated his cause by an original bill against Minnie Stover and Dora Chaney; and later G. E. Stover was permitted to intervene as a respondent. Respondents Stovers filed their answer, making the same a cross-bill, praying that complainant be restrained from prosecuting his suit for the possession of said lands or a portion thereof, and incorporated in their answer and cross-bill demurrer to the original bill.

Submission for decree on demurrers to the bill and cross-bill resulted in the sustaining of demurrer as to the failure of the bill to show that a certain deed or deeds represented therein to be "a will" had "been proven or probated as a will" (National Order, etc., v. Lile, 200 Ala. 508, 76 So. 450), and in overruling the ground of demurrer to the cross-bill that there is no equity therein for that the "conveyance sought to be reformed is shown to have been voluntary," etc. Larkins v. Biddle, 21 Ala. 252; Jones v. McNealy, 139 Ala. 379, 35 So. 1022, 101 Am. St. Rep. 38.

The original bill was amended to conform to the foregoing ruling on demurrer; complainant, Hill, answered the cross-bill and incorporated in such answer demurrers thereto; and respondent Chaney answered the bill as amended and the cross-bill. *Page 578

On September 13, 1918, submission for final decree was had on the respective pleading and proof; and the trial judge, without proceeding to a hearing and decision thereof, ordered that the submission be set aside, gave the respective parties a reasonable time to make the pleadings conform to his interpretation of the statute, so that the defendants at law should become the complainants in equity, and cast upon them the burden of proof. Conforming to this order, the respective parties reversed the order of their pleading, making the defendants at law, in the action of ejectment, the complainants in equity, the original plaintiff becoming respondent. Such action of the court in setting aside a submission is held to be within its inherent powers and the exercise of its sound discretion (Sims Ch. Pr. § 564), which will not be reviewed. Magruder v. Campbell, 40 Ala. 611; Ex parte Ashurst, 100 Ala. 573,13 So. 542; Yeend v. Weeks, 104 Ala. 331, 16 So. 165, 53 Am. St. Rep. 50; Jones v. White, 112 Ala. 449,20 So. 527. This order of October 9th was in conformity with the procedure approved in Cornelius v. Moore (Ala. Sup.)94 So. 57,¹ overruling Peebles v. Bank of Pollard, 201 Ala. 518,78 So. 872; Warren v. Crow, 202 Ala. 680, 81 So. 636. No prejudicial error results to an appellant when the burden of allegata et probata as to equitable defense set up by way of cross-bill was the same whether such parties presented such defense by way of an original bill or by a cross-bill in a proper case. Grand Bay Land Co. v. Simpson, 205 Ala. 347,87 So. 186; Hamilton v. Terry Fur. Loan Co., 206 Ala. 622,91 So. 489.

Assignments of error not sufficiently urged by counsel are not to be considered. Georgia Cotton Co. v. Lee, 195 Ala. 599,72 So. 158. The third assignment of error seeks to present for review the action of the court in sustaining demurrers to the bill as last amended. Appellants' argument in support thereof is:

"The court rendered its decree sustaining the demurrer to the bill last amended, which decree is shown at page 98 of the record. This decree is made the basis of the third assignment of error."

This is merely a repetition of the assignment of error and, under our uniform rulings, is insufficient to present the same for review. Georgia Cotton Co. v. Lee, supra; Republic Iron Steel Co. v. Quinton, 194 Ala. 126, 133, 69 So. 604; Western Union v. Benson, 159 Ala. 254, 273, 48 So. 712; Western Ry. of Ala. v. Russell, 144 Ala. 142, 150, 39 So. 311, 113 Am. St. Rep. 24; L. N. v. Morgan, 114 Ala. 449, 456, 22 So. 20; Williams v. Spragins, 102 Ala. 424, 431, 15 So. 247.

The Eighth judicial circuit embraces Lawrence county, where two judges preside, viz. Hon. O. Kyle and Hon. R. C. Brickell; and we judicially know (Hodge v. Joy, 207 Ala. 198, 92 So. 171) that they were such judges at the time the cause was submitted for final decree, from which the appeal is taken. Gen. Acts 1915, pp. 809, 811. Appellants' counsel say, in the motion to set aside the decree — and the record appears to bear out the assertion — that the cause was submitted for decree on demurrer at the April term of the circuit court, in equity, for Lawrence county, at which Hon. O. Kyle, a judge of said circuit, was presiding; and while under submission Hon. R. C. Brickell, the other judge of said circuit, rendered the decree sustaining the demurrer to the bill. This action of Judge Brickell in "undertaking to assume jurisdiction in this cause and returning a decree therein November 29, 1920," is the subject of the sixth assignment of error. Those proceedings were taken during a term of the court; and a judge of the court had jurisdiction of the parties and the subject-matter. After the cause was submitted at a session of that court, when one judge thereof was presiding, we can conceive of no reason why the parties to the cause, having so submitted the cause, should have had notice, or that any record entry be made, to the effect that during submission the questions of law presented by the demurrer would be examined and decree rendered thereon by another judge of the same court. In courts having more than one judge the purpose and terms of the statute are to facilitate procedure with due regard to the discharge of duty by the respective judges of the court, in the proper and expeditious decision of causes on submission. The insistence is without merit. There is slight analogy to be found in Kimball v. Cunningham Hdwe. Co., 201 Ala. 409, 78 So. 787; Edwards v. L. N., 202 Ala. 463, 80 So. 847.

The record shows that on June 24, 1921, in said cause pending in the circuit court, in equity, Hon. R. C. Brickell, as circuit judge, rendered a final decree, which recites that on November 29, 1920 —

"the court rendered a decree sustaining the demurrers to the bill of complaint and allowed the complainant 20 days from the date thereof in which to amend, * * * and that no amendment has been filed by the complainant to this day. It is * * * ordered, adjudged, and decreed by the court that the bill of complaint in this cause be and the same is hereby dismissed out of this court at the cost of the complainant," etc.

This action of the court is made the basis of the fourth assignment of error. Treating such assignment, appellants' counsel say that the appeal is —

"properly taken from the decree dismissing the bill, although no amendment was made to the bill after demurrers were sustained, and the decree sustaining demurrer is properly assigned as error upon this appeal. Code, § 2838; *Page 579 Nelms v. McGraw, 93 Ala. 245 [9 So. 719]; Wadsworth v. Goree, 96 Ala. 227 [10 So. 848]"; that "the error in the final decree, which is the basis of the fourth assignment of error, consists in the dismissing of the case for failure to amend the bill when there was a sufficient bill by the original plaintiff as complainant, and a sufficient answer thereto by the original defendant as respondent."

This is a sufficient argument to present the ruling of the court on the motion for rehearing or reinstatement of the cause to the docket. Ala. Power Co. v. Talmadge, 207 Ala. 86,93 So. 548; Ala. F. I. Co. v. Williams, 207 Ala. 99,91 So. 879.

The recurring question is, then, Is reversible error shown in dismissing the bill for failure of amendment, pursuant to former decree of the court of date November 29, 1920? The four-month statute (Code, § 5372) has no application to equity cases. Ingram v. Ala. Power Co., 201 Ala. 13, 15, 75 So. 304; Sharp v. Edwards, 203 Ala. 205, 82 So. 455. The term of court at which the final decree dismissed the bill had adjourned by operation of law on the last Saturday in June preceding the filing of the motion in July. Acts 1915, p. 707; Zaner v. Thrower, 203 Ala. 650, 653, 84 So. 820. The motion for rehearing or reinstatement was not made within the term of the rendition of the decree, required by chancery rule 81. Cox v. Brown, 198 Ala. 638, 73 So. 964. The action of the court in dismissing the bill for failure of required amendment cannot be questioned at a subsequent date by a motion filed for a rehearing and a ruling thereon not in accordance with chancery rule 83. Had the same been filed within the term at which the decree was rendered, the action of the court on such a motion would not be subject to review. Ex parte Gresham, 82 Ala. 359,2 So. 486; Cox v. Brown, supra; Chenault v. Milan, 205 Ala. 310,87 So. 537.

The decree is affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.

¹ Ante, p. 237.

On Rehearing.

Addendum

We will consider the demurrer to the bill. The lands of the respective parties were from a common source — the mother of respective parties. A bill to reform a deed may be maintained by a subsequent grantee holding from the common source, if the complainant is within the class and circumstances to whom such relief will be awarded. Jones v. McNealy, 139 Ala. 379,35 So. 1022, 101 Am. St. Rep. 38; Stricklin v. Kimbrell,193 Ala. 211, 69 So. 14; Burch v. Driver, 205 Ala. 659,88 So. 902; Welsh v. Neely, 187 Ala. 225, 65 So. 795; Greer v. Watson, 170 Ala. 334, 54 So. 487; Sicard v. Guyllou,147 Ala. 239, 242, 41 So. 474; Harris v. Ivey, 114 Ala. 363,21 So. 422; Tillis v. Smith, 108 Ala. 264, 19 So. 374.

The fact that the deed was founded upon a good rather than a valuable consideration is immaterial; if the conveyance does not express the intention of the grantor it will be reformed on proper pleading and proof. Jones v. McNealy, 139 Ala. 379, 384,35 So. 1022, 101 Am. St. Rep. 38; Weathers v. Hill, 92 Ala. 492,9 So. 412; Larkins v. Biddle, 21 Ala. 252. The averment of the bill as amended was that the mistake was mutual on the part of the grantor and grantees. Kant v. A. B. A. R. Co.,189 Ala. 48, 66 So. 598; Welsh v. Neely, 187 Ala. 222,65 So. 795; Peacock v. Bethea, 151 Ala. 141, 145, 43 So. 864; Goulding Fert. Co. v. Blanchard, 178 Ala. 298, 59 So. 485.

The respective conveyances in question were that from the mother, A. J. Hill, to J. W. Hill of date November 19, 1912, from A. J. Hill to Dora Chaney of date November 4, 1915, and that from Dora Chaney and husband conveying the lands to Minnie and G. E. Stover of date December 20, 1915. The fact that complainants were subsequent purchasers does not defeat their right of reformation under the facts if sufficiently averred and proven. Having acquired the common grantor's right as to the part of the land in controversy, they take her place and are entitled to enforce that right of reformation in the matter of the misdescription averred. Jones v. McNealy, 139 Ala. 379,35 So. 1022, 101 Am. St. Rep. 38; Stricklin v. Kimbrell,193 Ala. 211, 69 So. 14; Harris v. Ivey, 114 Ala. 363, 21 So. 422.

There is no inconsistency in the purpose and prayer to "reform" or partially "cancel" or correct respondent's deed, so as not to embrace complainants' 20 acres and to enjoin prosecution of the suit at law for recovery of said land. Jones v. McNealy, 139 Ala. 379, 385, 35 So. 1022, 101 Am. St. Rep. 38.

The true intent of the parties is averred as to the several tracts of land intended to be conveyed to the Stovers and to Dora Chaney (Welsh v. McNeely, 187 Ala. 222, 65 So. 795; Keith v. Woodruff, 136 Ala. 443, 34 So. 911), though there is no specific description by government surveys or subdivisions thereof of the 20 acres of land over on the mountain alleged to have been intended to be conveyed to respondent, Hill, other than the averments that it was not the 20 acres of the Torence place described as N. 1/2 of S.E. 1/4 of S.W. 1/4 of section 26, etc., was "over on the mountain" and that —

"J. W. Hill took possession of the 20 acres of land on the mountain that his mother gave him and intended to deed to him, and which he intended to accept a conveyance of, and sold timber and posts off the same and claimed it as his own, and offered it for sale and tried *Page 580 to sell it, claiming that he had a deed to it from his mother."

This description was sufficient to put respondent on notice as to the specific 20 acres of land he was averred to own by reason of said conveyance from his mother, A. J. Hill, and of which he was called upon to answer with a more specific description if he desired to assert the same as against his sisters.

There was error in the decree of November 29, 1920, by Judge Brickell, sustaining demurrer to the bill; and there was error in his decree of June 24, 1921, dismissing the bill for failure to amend the bill of complaint pursuant to such ruling on demurrer.

The decree of the circuit court in equity is reversed, and the case is remanded for further proceeding therein.

Rehearing granted, judgment of affirmance set aside, and reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.