Wyatt v. Garlington

56 Ala. 576 | Ala. | 1876

STONE, J.

Wyatt, the purchaser, has never been disturbed in the possession of the lands he bought from Garlington, so far as we are informed. There is neither averment nor proof that Garlington is not able to respond in damages, if he should not be able to make a good title. The cross bills do not seek a rescission. The proof strongly shows that Garlington has a good equitable title, with such length of independent, separate enjoyment, as to toll all adversary right of entry. The cross bills utterly fail to show any right in Wyatt to resist the relief sought by Garlington, that is based on an alleged defect in his (Garlington’s) title. McLemore v. Mabson, 20 Ala. 137; Strong v. Waddell, at the present term.

2. Three witnesses testify to Wyatt’s handwriting and signature to the paper which purports to transfer the Murry and Brazell mortgages. One of the witnesses, Garlington, testifies, as a fact, that Wyatt did execute the paper. The chancellor found and decreed, as a fact, that Wyatt did transfer the notes and mortgages to Garlington; for otherwise he could not have granted him relief. The testimony, in conflict with that mentioned above, is not strong enough to overcome it, and to convince us that the chancellor erred in his finding. — Bartlett v. Varner, at present term, and authorities cited.

3. In his final decrees, the chancellor made no reference to the cross bills. Perhaps, it would have been better had he done so. The effect of his decree, however, was that the complainant in neither of them was entitled to any relief. The relief he granted on the original bills, being incompatible with any relief prayed, or which could have been granted on the cross bills, demonstrates this. This, in effect, was a final decree, refusing relief on the cross bills, and furnishes appellant no ground-of complaint. To mate the decree complete, however, we will proceed to render the decree which the chancellor should have rendered. It is therefore ordered and decreed,. that the cross bill in each of these cases be, and'the same is hereby, dismissed, at the costs of the complainants therein, to be taxed by the register.

Affirmed.