Shaw v. Lindsey

BRICKELL, C. J. The bill was filed to quiet the title of the appellee, to lands therein described, which he claims to have purchased at sheriff’s sale under an execution in his own favor, against the appellant Cox, and at sales made by Lang, the assignee in bankruptcy of Cox, and to enjoin an action of ejectment commenced by the appellant Shaw, for the recovery of a part of the land; and a statutory real action commenced by Cox, for the recovery of a part claimed as a homestead. The bill was answered by Cox and Shaw [349] jointly, expressly waiving the objection of multifariousness, and they filed a cross-bill for relief. Subsequently, they interposed a demurrer, assigning as causes, not only multifariousness, but a want of equity in the original bill. The demurrer was overruled, but on what ground is not shown by the record; and no objection to its regularity, or to the time of filing it, appears to have been made. It is now insisted in argument, that the demurrer was irregular, having been filed after answer, without leave of the court, and was properly overruled, without regard to its merits. 1. The rule of practice, in courts of law, which has obtained in this State from an early day, is, that an objection to the time of filing a pleading must be taken by a motion to strike from the files, and, if not taken in that mode, must be deemed waived.—Holley v. Younge, 27 Ala. 203; Hart v. Turk, 15 Ala. 675; Sadler v. Fisher, 3 Ala. 200. A similar rule obtains in courts of equity; and if a demurrer was filed with an answer, which, prior to our statute, was irregular, the answer overruling the demurrer, the practice was, not to overrule the demurrer, but on motion to strike it from the files. 1 Dan. Ch. Pr. 592. The statute authorizes the incorporation of a demurrer in an answer; and after answer, without incorporating a demurrer, it is irregular, without leave of the court, to file it separately. The statute of amendments, in equity, is very broad and liberal; and the court would be bound, on application, to permit the demurrer to be incorporated in the answer, at any time before final decree. — Code of 1876, § 3790. Proceeding to a hearing on demurrer, filed subsequent to, and not with the answer, is a waiver of the irregularity. The merits of the demurrer must, therefore, determine the correctness of the decree overruling it. 2. A purchaser of lands, at a sale under execution, acquires the estate, or the interest of the defendant, which the, law authorizes to be levied and sold ; no other, and no greater estate or interest. The statute subjects to levy and sale an equity of redemption, a perfect equity, the defendant having paid the purchase-money, a legal title, or a vested legal interest in possession, reversion, or remainder, whether it is an entire estate, or held in common with others. — Code of 1876, § 3209. It is apparent that Cox, the defendant in execution, had, at the time the record of the judgment against him was substituted, and at the time of the issue and delivery of execution to the sheriff, merely an equity of redemption in the lands. The deed of trust to Shelton was a conveyance of the entire legal estate, without reservation to Cox of the right to possession until default was made in the [350] payment of tlie secured debt. If he remained in possession after its execution, he was simply the tenant at will of the trustee, and without any legal interest, or a legal right to possession, subject to the lien of an execution against him. The equity of redemption — the right to restore himself to his original estate — was all that remained in him ; and this, under the statute, was subject to execution. But, before the sale by tbe sheriff, Cox having made default in the payment of the debt secured, and the event having happened on which the trustee was empowered to sell the lands in pursuance of the terms of the deed, he made a sale. The sale as effectually divested. Cox of all estate and interest in the lands — as effectually cut off the equity of redemption, as would a decree of foreclosure in a court of equity.—2 Wash. Real Prop. 78; 4 Kent, 159; Childress v. Monette, 54 Ala. 317. All that remained to him, or to his judgment creditors, after the sale, was the statutory right and privilege of redemption from the purchaser. 3. The bill proceeds in its averments, however, to assert that Cox, notwithstanding the sale by the trustee, had a perfect equity in the lands. The equity is supposed to arise from the facts, as alleged, that the lands, though nominally purchased by Latham, for Shaw, were in fact purchased for Cox, and that the purchase-money was paid by Cox giving a lien on the crops growing on the lands. Passing over all the numerous allegations of fraud, the bill very clearly shows that Latham had not been paid the purchase-money, when the sale and conveyance was made by the sheriff. The payment, it avers, was made subsequent to that sale and conveyance ; and it has no retroactive operation, so as to enlarge the interest which the sheriff had authority to sell. The perfect equity, which the statute subjects to levy and sale under execution at law, is of one class only — that of a vendee, who has paid the purchase-money. There may be other equities of equal dignity, standing on as high ground, and as easily enforced in courts of equity, and yet not subject to levy and sale under execution at law. The subjection of equitable interests, or estates, to sale under legal process, was, prior to the Code, expressly prohibited by statute. — Olay’s Digest, 350, § 31. The equity of a vendee, in possession, who had fully paid the purchase-money, though perfect, the bare legal title outstanding in the vendor, which he had covenanted to convey on the event which had happened — the payment of the purchase-money — could not be sold under execution at law, though the legal estate could be, and the purchaser could recover onit against the vendee, compelling him into a court of equity for a specific performance.—Driver v. Clarke, 13 [351] Ala. 192; Elmore v. Harris, Ib. 360; Nickles v. Haskins, 15 Ala. 619; Hogan v. Smith, 16 Ala. 600. The estate of the vendee, though equitable, in such case, comprehended the entire beneficial interest. Converting it into a legal estate, the vendee could delay, and thereby embarrass and delay his judgment creditors, by compelling them to the more,expensive and dilatory proceeding of a bill in equity to subject it. Without subjecting all equities to execution at law, the equity of the vendee who has fully paid the purchase-money, termed in judicial decision, and in other statutes, a perfect equity, is subjected. The equity is inchoate, imperfect, until the purchase-money is paid; and that being unpaid when the sale was made by the sheriff, though it may have been subquently paid, the appellee acquired no interest in the lands. 4. The right and power of an assignee in bankruptcy, to sell and convey the estate of the bankrupt, depends entirely on the statute. A sale and conveyance made by him, in any other mode than that which is prescribed by the bankrupt law, is a mere nullity, conveying no title. Not adverting to any other objections tu the title the appellee claims to have derived from the assignee in bankruptcy of Cox, it is shown by the bill that the title to the lands conveyed originally to Shelton was in dispute, being claimed by Latham and Shaw, and by the appellee, and had never passed into the possession of the assignee. An assignee in bankruptcy can not sell property in dispute, except under an order of the court of bankruptcy, made on his petition, after notice to the parties claiming adversely. No such order was obtained, and the sale and conveyance passed no title to the appellee. — Bump on Bank. 9 ed. 569. It results, that the appellee is without title, legal or equitable, to the parts of the land embraced in the action of ejectment commenced by Shaw. 5. A court of equity, unless in a case free from doubt, and of some peculiar equity, will not restrain a plaintiff in ejectment from prosecuting an action at law on the legal title. High onlnj. 182. Nor will the court interfere, when the title of the plaintiff, and of the defendant as claimed, is purely legal, and the ground relied on for relief is available as a defense at law. — lb. Without inquiring into the validity of the claim of Cox to a homestead, or whether the claim was asserted at the proper time, and in the proper manner, to preserve and perfect the right of exemption, it is enough to say, if they were not, the defense at law is complete, and being complete, there is no reason for the interference of a court of equity. The decree of the chancellor must be reversed, and a de [352] cree here rendered, dissolving the injunction, and dismissing the bill; and the appellee must pay the costs of this court, and of the Chancery Court.