96 Ala. 469 | Ala. | 1892
The bill of complaint is one filed for discovery and relief. The chancellor sustained the demurrer to the bill, upon the grounds that complainants had a “full, complete ana adequate remedy at law.” • From the decree sustaining the demurrer the present appeal was prosecuted.
Complainant avers in his bill that on the 18th day of December, 1888, he sold and by deed conveyed to respondents eighty-six lots in the town of Florence, the consideration for which was thirty thousand dollars, and in addition thereto complainant was to receive a one-fifth interest of the profits from a resale of the lots; that an absolute deed of conveyance was executed to the vendees of complainant, to enable them to sell and make deeds to purchasers, without being embarrassed by the retention by complainant of a vendor’s lien for the unpaid consideration. The fifth paragraph of the bill avers and charges, upon information and belief, that respondents have re-sold all the lots and received large considerations therefor, but what considerations have been received are unknown to complainant. It is stated in the bill that by investigation complainant has ascertained from the records of the Probate Court that forty-nine of the lots were sold for the sum of forty-seven thousand and four hundred dollars.
If the bill sought an accounting for these forty-nine lots, it would be clearly without equity, as it would require but a simple calculation to ascertain the amount due plaintiff for his one-fifth interest in the profits, according to the terms of his contract of sale. But the bill avers that the entire lots (eighty-six in number) have been re-sold. There remains, therefore, the, purchase-money for thirty-seven lots to be accounted for by respondents.
Complainant avers that “he does not know, and has no means of ascertaining, and no way of procuring, the infortion necessary to correctly state an account between himself and respondents,” and he avers that he has applied time and again to respondents for a settlement and payment, and the
It is contended in argument, that the averment that complainant “does not know, and has no means of ascertaining, nor way of procuring, the information necessary to a correct statement of the account,” is a mere conclusion ox the pleader; and, standing alone, this might be true, but taken in connection with the facts averred,- we are of opinion the averment is more than a mere conclusion. The bill shows that the legal title to all the lots was in respondents; that the lots have been re-sold by them for large considerations, which have been collected, and respondents refuse to account or give complainant any information by which he may ascertain the considerations for which they were sold, or the amount received therefor, although frequent requests and demands have been made for the information. These and similar allegations are followed by the averment, which emphasizes the equity of the bill, that the complainant “did not know, and had no means of knowing, or way of procuring, the necessary information, to enable him to state the account.”
If these averments are true, for what amount would plaintiff sue in a court of law? And if he should state an amount at a venture in a declaration, by what testimony would he proceed to establish his claim, unless by that of the respondents themselves ?
The well established jurisdiction of a court of equity, to compel a discovery from a party, is not affectedby the statutory provisions which permit an examination of the parties to a suit as witnesses in a court at law. The jurisdiction remains the same as before the adoption of the statute. The jurisdiction of the Chancery Court having once rightfully attached upon the ground that a discovery was necessary, the court will proceed to adjudicate questions and claims, although of a purely legal character themselves, which are connected with or proceed from those in regard to which a court of equity grants relief by discovery. We cite the following authorities Va. & Ala. M. M. Co. v. Hale, 93 Ala. 542; Handley v. Heflin, 84 Ala. 600; Shackelford v. Bankhead, 72 Ala. 476; Con. Life Ins. Co. v. Webb, 54 Ala. 688; 1 Story’s Eq. Jur, 71, 72; 1 Pom. Eq., § 230.
It may be that respondents’ answer will deny the grounds upon which a discovery is sought, and plaintiff’s proof may
Reversed and remanded.
