81 So. 636 | Ala. | 1919
When a defendant at law procures a transfer of his case to the equity side of the court, pursuant to the Act of September 28, 1915 (Gen. Acts 1915, pp. 830-832), in order to make available an equitable defense, it is contemplated that the plaintiff shall file a new or amended complaint in conformity with the chancery practice, and that the defendant shall then present his defense by plea or answer as in chancery. See Peebles v. Bank of Pollard,
That would have been the appropriate procedure here; but there was manifestly no prejudice to the defendants at law in requiring them to become complainants on the equity side, since their burden of allegation and proof was the same in either case.
We need not determine whether any ground of demurrer to the original bill was well taken, for the amendment bringing in the new parties was not material to the result; nor did the amendment charging, "in terms," that respondent had notice or knowledge of complainants' rights in the land when he bought at sheriff's sale, add anything to complainants' burden of proof, since that burden was fully met by proving their already alleged possession of the land under circumstances which imparted constructive notice to respondent of their claim to the lands.
If there was error in the ruling on demurrer, it was therefore error without any possible injury.
The evidence showed that complainants' title was equitable only, and, prima facie, superior to respondent's subsequently acquired legal title, by reason of the fact that complainants were in open possession of the lands, under claim of right, at the time when the lien of respondent's judgment attached. But respondent's cross-bill attacked complainants' purchase as simulated and fraudulent, and the evidence justified the finding of the trial court — whether the finding was based upon that issue or not — that the purchase was fraudulent, and therefore void, as against respondent, a then existing creditor.
Appellants (complainants) do not question the validity of such a conclusion on the weight of the evidence, but their only contention is that the impeachment of their deed as fraudulent was a matter of legal cognizance and defense, and was therefore not available here, and gave no equity to the cross-bill.
This contention is obviously unsound. When an equity court has jurisdiction of a cause, it will entertain any defense which defeats the equity of the complainant, whether such defense be legal or equitable, and it it not necessary that matters set up by a cross-bill in defense only to the original bill should be of equitable cognizance, as distinguished from legal demands. Winn v. Dillard,
As for the relief sought by way of concellation of the alleged fraudulent deed, that is a matter of purely equitable cognizance — proper in this cross-bill, although it might not support an original bill by a complainant not in possession of the land, and therefore able to test his title in a court of law.
We have considered the assignments of error as they have been argued in brief by counsel for appellants, and find no prejudicial error therein.
The decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.
