McCaw v. Barker

HARALSON, J. The original bill was filed June 20, 1891. The answer and cross-bill of R. G. Pegram, trustee, was filed July 31, 1891. The original and cross-bill, each, waived the oath of the defendants thereto, and neither contained interrogatories to any of the defendants, under rule 13, Chancery Practice. The answers and demurrers of the other defendants to the bill were filed in the month of August, 1891. On the 17th March, 1892, the complainants in the original and cross-bills, filed separate motions, to allow them to amend their bills, respectively, by adding thereto certain interrogatories to P. D. Barker, a defendant to each of said bills, and requiring his answer thereto under oath. This amendment was allowed at rules by the register, from which order the defendants, Barker, and the executors of Duncan T. Parker appealed, and on May 3d, 1892, the chancellor rendered a decision reversing and annulling the order of the register, and ordering that the said amendments to the original and cross-bills be disallowed ; but, by leave of the court, said bills were each amended by adding to them, the same interrogatories to said P. D. Barker, but waiving the oath of said Barker thereto. 1. The proposed amendments came under section 3449 of the Code of 1886, and were not allowable as a matter of right. They had no reference to “striking out or adding new parties, or to meet any state of the evidence which will [would] authorize relief.’’—Ex parte Ashurst, 100 Ala. 573. No harm was done the complainants, since they might have availed themselves of the answers to the questions desired, and obtained the same infor [548] mation by propounding the same questions to the defendant, Barker, on his examination as a witness. Neither the bill nor cross-bill was filed for a discovery, and contains none of the elements of such a bill, either under the statute, (Code of 1886, §§ 3541, 3545), or under the general jurisdiction of equity in such cases, and neither contains any of the necessary allegations for the maintenance of such a bill, nor did the proposed amendments, if that fact were of any consequence, contain any such averment.—Guice v. Parker, 46 Ala. 616 ; Story Eq. PL, §§ 317-321. 2. The rule is well settled, that the friendly occupancy of the common estate by one tenant, does not render him liable to account for rents and profits—Newbold v. Smart, 67 Ala. 326; Wilkinson v. Stewart, 74 Ala. 204; Ferris v. Montgomery Land & Improvement Co., 94 Ala. 563. But, where one tenant in common actually receives rents for the common property from those to whom he rents it, he may be compelled to account for such profits actually received.—Freeman on Cotenancy & Partition, § 273; Gayle v. Johnston, 80 Ala. 396; Sanders v. Robertson, 57 Ala. 470; Pope v. Harkins, 16 Ala. 321. The question is here presented, whether one tenant in common, liable to his co-tenants for rent, has the right to maintain a bill in equity to recover such rents, when the amount received by him is fixed and certain, and there is no complication or confusion of accounts between them as to the rents. This question is not of that numerous class where an accounting, whether complicated or not, is decreed as an incident to other equitable relief the bill was filed to obtain, as in cases of a bill for partition, or where the subject-matter is an equitable interest or estate, of which subjects the court, having taken jurisdiction, will dispose of every connected matter of dispute. The general rule in the exercise of chancery practice, subject to-few exceptions, is, that when the plaintiff can have as effectual and complete a remedy in a court of law as in a court of equity, and that remedy is certain and adequate, 'the equity court will not interfere. To a bill in such a case a demurrer will lie, or it may be dismissed on that account, at any stage of the proceedings. Story Eq. PL, § 473, n.; 1 Pom. Eq. Juris., §178; [549] Dargin v. Hewlett, ante, p. 510. By statute in this State, re-cognizing the foregoing rule, it is provided, that the jurisdiction of the court of equity shall extend, “To all civil causes in which a plain and adequate remedy is not provided in the other judicial tribunals.” — Code of 1886, § 720, sub-div. 1. But, why should a court of equity be called on for the mere purpose of settling an account between tenants in common, and enforcing the collection of the same, where the amount of rents received are certain, and there is no complication of accounts? Mr. Freeman, treating this matter says : “Courts of equity have concurrent jurisdiction with courts of law of all matters of account between tenants in common or other co-tenants. Either co-tenant may invoke the assistance of equity to compel an accounting upon showing a necessity therefor, and can not be deprived of this assistance because he has an adequate legal remedy by an action of account. In fact, the superior facilities offered by courts of equity, where an accounting has become necessary, are such that these courts are almost universally resorted to, in preference to the tribunals of the law. But, it has been determined, that where the accounts are all on one side and are very simple, and no discovery is sought, courts of equity will decline taking jurisdiction of the case.” — Freeman on Coten. & Part., § 321. It is stated in the Am. & Eng. Encyc. of Law, that “The general rule that an equitable action can not be maintained where the remedy at law is adequate and complete, applies to cases of joint tenancy and tenancy in common.” — Vol. 11, p. 1134. The Pennsylvania court, touching the matter of remedies at law between tenants in common, uses this language : “There is no doubt of our concurrent jurisdiction, with courts of law, in matters of account, where the accounts are mutual and complicated, and also where they are all one side, but discovery is sought, and is material to the relief. In the first class of cases, a bill in equity is generally preferable to account render, and as discovery is peculiarly a chancery jurisdiction, a court of equity, to prevent a multiplicity of suits, will, when it has legitimately acquired jurisdiction over the cause for purposes of discovery, entertain the suit for relief, and dispose of every connected topic of dispute. But, on the other hand, where the accounts are all on [550] one side, and no discovery is sought or required, courts of equity will decline taking jurisdiction of the cause.” Gloninger v. Hazard, 42 Penn. St. 389, 401, and authorities there cited. The case of Sanders v. Robertson, 57 Ala. 465, was a bill in equity by one tenant in common against others, for an account of rents and profits. Judge Stone reviewed the authorities on the subject, pronounced the accounts between the parties complicated and difficult of adjustment, and expressed the conclusion of the court as follows : ‘ ‘Accounts, complicated as this is, can not be adjusted properly in a court of law ; and for this reason, courts of equity take original jurisdiction of such claims.” . The case of Nelms v. McGraw, 93 Ala. 245, was supposed, in one of its features, to involve an accounting between tenants in common. The relation between the' parties in the case was held not to be that of partners inter sese, and that the bill' could not be maintained for the purpose of settling the alleged partnership accounts. It having been contended, that the bill might, notwithstanding, be sustained as one for an accounting between tenants in common, the court stated in reply to that proposition: “Conceding that a court of equity has jurisdiction to compel an account between tenants in common, where one has received more than his share of the profits, the exercise of the jurisdiction is dependent on unadjusted, complicated matters of account, or the necessity of a discovery. The bill shows neither. If the relation of the parties in respect of the lumber be that of tenancy in. common, on the facts alleged complainant’s remedy at law is adequate.” According to the statements of the bill, Barker & Parker, received $1,200 a year for four years, as rents for the common property, making $4,800 during the entire period, one-third of which is claimed by the complainant in the original bill, Ann E. McCaw, and one-half by R. G. Pegram, as trustee, complainant in the cross-bill, with interest thereon, from the end of each year in which the rents were so received. The account is all on one side and is most simple. The claim is not open to adjustment, and a quantum meruit valuation cannot arise.—Hairston v. Sumner, 106 Ala. 381; Gayle v. Johnson, 80 Ala. 396, supra. If the allegations of the bill are true, and if upon such averments, the defendants [551] receiving the rents owe the complainants their part of it, can there be any reason why the complainants may not maintain an action of assumpsit at law against them for their' proportion of the money received? On this ground the chancellor dismissed the said bills. It is contended for the appellees, that the bill shoivs . that it is wanting in necessary parties, as objected on demurrer ; that one-third interest in the common property belongs to the unsettled trust estate created by the will of Hugh McCaw, and only a regularly appointed trustee in succession of Mrs. Ann E. McOaw, deceased, the original trustee, was entitled to maintain the suit; and though the bill was dismissed on another ground, was rightfully dismissed for this reason ; that such objection may be made at the hearing, or on'error, or by the court ex mero moho.—Wilson v. Holt, 85 Ala. 97 ; 3 Brick. Dig. 373, §98. It is further contended, as again objected on demurrer, that the bill does not show that Parker, or Parker & Barker received any rents, issues and profits from any one, on account of or arising out of the rent or use of said warehouse property, or for or on account of the undivided interest therein of the complainants ; that the $1,200 per annum received by Parker & Barker, for four years, was under their contract of October 21, 1886, Which provided that “this association (The Cotton Press Association of Mobile) agrees to pay Parker & Barker $1,200 per annum to prevent Planters Press & Warehouse from being used in any way for the cotton press or storage business, which they herein guarantee to do, to prevent competition from other sources;” and that the stipend of $1,200 a year received by said Parker & Barker under that clause of their agreement with said association, cannot be construed as in the nature of rents, issues and profits, but was a joint personal guaranty of Parker & .Barker to prevent a certain use of the property, for a breach of which they would have been liable in damages. These points are pressed with much force and .plausibility. We do not consider them, but prefer to base our decision of the case on the question we have decided, and on which the chancellor dismissed the bill. There was no error, as assigned, in the decree of the chancery court, and it is affirmed. Affirmed.