Opinion
7 Div. 847.
March 7, 1946.
Appeal from Circuit Court, Etowah County; W. M. Rayburn, Judge.
Bill in equity by I. B. Brewton and others against Jennie Garrett and others to recover possession of land, for rents, and other relief. From a decree overruling a demurrer to the bill, respondents appeal.
Reversed and rendered.
The bill alleges, in substance, that complainants are sole and absolute owners of the lands described, the same having been the sole and absolute property of one George F. Brewton who died in 1936, leaving no last will, and leaving surviving him a widow, Jannie Brewton. George F. Brewton had no children, and his heirs at law are the complainants herein. The widow attempted to have said lands set apart to her as a homestead; and in 1937 a decree was rendered in the Circuit Court of Etowah County, in equity, by which the lands were decreed to the widow for the term of her life with remainder at her death to these complainants. The widow died in 1943, whereupon the property became that of complainants absolutely. Respondents were tenants of Jannie Brewton and have occupied the property since her death, but have failed and refused to pay rent to complainants, or to acknowledge complainants as their landlord or to surrender possession to them. Said Jannie Brewton, after the death of her husband, made and executed a mortgage on said lands to one Green, who transferred same to respondents, said mortgage being foreclosed and respondents becoming the purchasers. Respondents are claiming an interest in or title to the land by reason of said mortgage foreclosure. It is averred that the mortgage and its foreclosure are void and of no effect, by reason of the fact that Jannie Brewton owned only a life estate in the lands, and the mortgage became worthless immediately upon her death. It is averred that said mortgage and its foreclosure constitute a cloud upon complainants' title and stand in the way of their immediate possession of the lands. It is averred that respondents have not paid any rent for use and occupation of said land, are enjoying the possession thereof and have made large crops which they are now engaged in fraudulently disposing of, thus denying complainants their right to rents; that respondents do not have any property out of which execution can be made, and unless the court assumes jurisdiction and appoints a receiver, complainants will be irrevocably injured.
It is prayed that respondents be decreed to have no valid or enforceable claim or title to the lands; that whatever documents they may have, including said mortgage and foreclosure, be cancelled as a cloud upon complainants' title; that judgment be rendered against respondents for rents, and an accounting therefor be required of them; that respondents be required to surrender possession of said lands to complainants; that a receiver be appointed to take charge and control of rents due or to become due, under orders and direction of the court, and for general relief.
Motley Motley, of Gadsden, for appellants.
Complainants were out of possession and could not maintain a bill to recover possession, since they have an adequate remedy at law by ejectment and recovery of rent. Nor could they remove cloud from title, they being out of possession and alleging appellants' title to be void. Code 1940, Tit. 13, § 129(1); 17 Ency. Pl. Pr. 306; Watts v. Frazer, 80 Ala. 186; Tyson v. Brown, 64 Ala. 244; Cox v. Boyleston, 57 Ala. 270; Galloway v. Hendon, 131 Ala. 280, 31 So. 603; Belcher v. Scruggs, 125 Ala. 336, 27 So. 839; Thorington v. Montgomery, 82 Ala. 591, 2 So. 513; Baines v. Barnes, 64 Ala. 375; McLean v. Presley, 56 Ala. 211; Alabama L. S. Co. v. Adams, 222 Ala. 538, 133 So. 580; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Gulf Red Cedar Lbr. Co. v. Crenshaw, 148 Ala. 343, 42 So. 564.
Roy D. McCord, of Gadsden, for appellees.
The bill is good as one for appointment of a receiver, to remove cloud from title, for accounting, and to adjudicate the rights of the parties growing out of a former decree with reference to inheritance, etc.
The appeal is from a decree overruling a demurrer to the bill of complaint. It was averred in the bill that complainants are the "sole and absolute owners" of the real estate described therein, and that the respondents are in the possession of said property. Complainants, therefore, are in the position of one relying on a legal title who seeks to recover possession of land adversely held. The remedy at law is adequate, and the case does not present one for' the jurisdiction of a court of equity. 21 C.J. p. 62. See also 30 C.J.S., Equity, § 29.
"A court of equity will not entertain a bill to remove a cloud from the title to land in favor of a person asserting the legal title, when he is not in possession, unless he shows some special equity, which would prevent or embarrass the assertion of his rights at law." Belcher v. Scruggs, 125 Ala. 336, 27 So. 839 (first headnote).
To like effect is Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578. See also 21 C.J. p. 65. See also 30 C.J.S., Equity, § 30. And among the more recent authorities are Preuit v. Wallace, 238 Ala. 162, 189 So. 887, and Perry v. Warnock, 246 Ala. 470, 20 So.2d 867, 868. In the latter cause, speaking to the question here in hand, the Court observed: "Equity will not take jurisdiction as a substitute for an action of ejectment."
True, in an action of ejectment plaintiff would be entitled to recover damages for the detention of the rents and profits which the defendants have collected. The bill contains averments indicating, though not expressly so stating, that the defendants are insolvent. Conceding for the purpose of this case that the bill may be reasonably so construed, this does not suffice to give the bill equity. In Preuit v. Wallace, supra, it was pointed out that in ejectment suits, complainants disclosing a probability of success in the suit and defendant being insolvent and collecting rents, a receiver may be appointed; citing Hereford v. Hereford, 134 Ala. 321, 32 So. 651.
But a bill of this character is one to preserve through a receivership the rents pending the action of ejectment, so that the complainant would not lose the fruits of his victory should he succeed in establishing his ownership of the property.
The bill in the instant case, therefore, would not have equity upon the theory of the appointment of a receiver, as there is pending no ejectment suit. Such an appointment would merely be in aid of a pending suit. The bill is without equity.
There is nothing on the face of the bill indicating that it can be amended so as to give it equity, but rather the contrary. McCraw v. Davenport, 238 Ala. 245, 189 So. 884. The decree will therefore be reversed and one here rendered sustaining the demurrer and dismissing the bill.
Reversed and rendered.
BROWN, LIVINGSTON, and SIMPSON, JJ., concur.