43 Ala. 692 | Ala. | 1869
The orginal bill in this case was filed on the 4th day of May, 1868, in the chancery court for the 8th chancery district and southern chancery division of Ala
There is no note at the bottom of the bill desiring the defendants to answer the same, and there is no waiver of answers on oath. On the 12fch day of August, 1858, an amended bill was filed by complainant, in which it is alleged, that, at the time of making said promissory note, Mrs. Winter owned as her separate estate certain slaves, named Dennis, Keziah, Hampton and Henry, and the same were in Montgomery county. This amendment waives answers on oath to the original and amended bills, but it also omits a note at the bottom of the bill, as required by the 10th rule of chancery practice. On the 14th day of March, 1861, Mrs. Winter and her husband and trustee filed their joint answer and cross bill to said original and amended bills, in which they demur to said original and amended bills for want of equity. Afterwards, on the 17th day of January, 1866, the complainant filed a second amended bill, in which it is alleged, that Mrs. Winter had considerable separate estate, consisting of real property, in said county of Montgomery, which had been conveyed to trustees for her sole and separate use and benefit, in the years 1852,
The original and amended bills constitute one suit; and the grounds for relief must be consistent throughout the whole, and must have existed at the filing of the bill.— 1 Dan. Ch. Pr. (Perkins’ ed.) 455; Story Eq. Bl. § 885.
Here the original bill states but four jurisdictional facts, viz : The making of the note by Mrs. Winter; that she was a married woman: her ownership of a separate estate; and the ownership by Quarles of the note made by Mrs. Winter, on the 22d November, 1854, and her failure to pay it. This is not enough. It must be alleged and proven, that the note is a charge upon her separate estate; or that the note has been so executed, and for such a consideration, as to make it a charge on her separate estate. It is not shown whether Mrs. Winter’s estate is a statutory separate estate, or a separate estate created in some other manner, and is such a separate estate as she can charge with the
The second amended bill shows, that the title of Mrs. Winter to her separate estate is by deed, making the legal title in her trustee; and that she and her children are interested in said estate. It is not shown that there are no children. This is inconsistent with the title set up in the original and first amended bill. It is, therefore, a departure which is not allowed. The two titles are not the same, and different persons are interested in them.
The right to amend is very broad' under our statute, and should be liberally construed. Yet an amendment which is inconsistent with the original bill, or which sets up a narrative of facts different from that of the original bill, and.which do not form a part of the facts on which it is predicated, or which legitimately grew out of it, is demurrable. An amendment can only be allowed, where the original bill is defective in proper parties, or in the prayer for relief, or in the omission of some fact connected with the substance of the case, or necessary frame of the bill.
The second amended bill ought to show, if such is the fact, that the title set up there, which creates the separate estate of Mrs. Winter, is the same as that relied on in the original, and that it is a part of the same case. It ought, also, to show that Mrs. Winter has no children, or if such exist, it should be alleged who they are; and they should be made parties to the suit; and that the note mentioned in the original bill is a charge upon the separate estate sought to be subjected to its payment.
Eor the errors above pointed out, the decree of the court below is reversed; and as it is not impossible that the original and amended bills may be made to harmonize, and in order that the children of Mrs. Winter, who are shown by the proofs to be in existence, may be brought before the court, the cause is remanded for further proceedings in the court below. The appellees, as the administrators of the estate of Samuel Quarles, deceased, will pay the costs of this appeal in this court and the court below.