93 Ala. 572 | Ala. | 1890
— The purpose of the bill is to have an account stated between plaintiffs and defendant, and to charge defendant with one half the iron ore mined and moved from the forty acres of land described in the bill, to defendant’s furnace. Plaintiffs claim to own an undivided half interest in the land under the will of their father, which is made an exhibit to the bill, and aver that their father owned a half interest in the land at the time of his death. The bill also avers that the defendant has mined and moved 400,000 tons of ore, of the value of $40,000. The bill avers “that said Tecumseh Iron Company has been in possession of said land, as complainants are informed, believe, state and charge, under and by purchase from Geo. "W. Alexander; and complainants insist, state and charge that Geo. W. Alexander had no interest in said land, and therefore had no authority, right or power to sell or convey said land to the said Tecumseh Iron Company, as he never did have any right or interest in said land ; and if any sale was ever made by Geo. W., or him and his wife, it was wholly void so far as such sale affected complainants.” The prayer of the bill is for an account add general relief, and does not ask for any special relief'as to title; neither is the bill one seeking partition of the land. — McEvoy v. Leonard, 39 Ala. 457, 460; McMath v. DeBardelaben, 75 Ala. 68.
If the averments of the bill are true, the defendant is in possession as a trespasser, claiming the right to the land under. a purchase from one Geo. W. Alexander, who the bill avers had no title or interest in the same. Leaving out of consideration for the present all other questions, before the court could proceed to order an account, and hold defendant responsible for the iron ore, it must necessarily determine the disputed question of titles to the land. A party can not accomplish indirectly by bill in chancery that which can not be done directly. The rule that courts of equity, having,jurisdiction for one purpose, will proceed to settle all matters germane to the disputed question, can not be invoked, in cases where the equitable jurisdiction of the court can not be exercised until
One tenant in common may, under certain conditions, maintain assumpsit against his co-tenant. Whether the aver1 ments of the present bill bring the case within the rule, queref Fielder v. Childs, 73 Ala. supra; Strother v. Butler, 17 Ala. 733; Pike v. Bright, 29 Ala. 332; Fuller v. Duren, 36 Ala. 73; Malone v. Hundley, 52 Ala. 149.
The bill seeks no discovery of the defendant, neither are the averments of the bill sufficient to show a mutuality of indebtedness, or any complication of accounts. As was held in Avery v. Ware, 58 Ala. 475, it is not every matter of account of which a court of equity takes j urisdiction. There must be a fiduciary relation between the parties, or mutuality or complication of accounts, to justify the intervention of a court of equity. Where the accounts are all on one side, where the demands are purely legal, and the amount ascertainable by a simple calculation, the remedy at law is adequate. — Knotts, v. Tarver, 8 Ala. 743; Dickinson v. Lewis, 34 Ala. 638; 29 Ala. 337; 7 Ala. 217. Equity jurisdiction in matters of account is exercised only where some special cause is alleged, as where the accounts are intricaté, or discovery is prayed, or some other ground peculiar to equity exists. — Jewett v. Bowman, 29 N. J. Eq. Rep. 174. An accounting is always ordered in a court of equity, where it is an incident to some other relief; but where an accounting is the only ground of equitable intervention, there should be some averment of facts to show that a complete remedy can not be had in a court of law, or some fact peculiar to a court of equity. — 6 Amer. & Eng. Ency. of Law, p. 720; authorities supra.
Reversed and remanded.