Sloss-Sheffield Steel & Iron Co. v. Board of Trustees of the University of Alabama

McCLELLAN, C. J. The Board of Trustees of the University of Alabama is complainant in this bill exhibited against the Sloss-Sheffield Steel & Iron Co. The bill contains every averment and the prayer necessary to present a case of equitable cognizance under the acr. of 1892 “to compel the determination of claims to real estate in certain cases, and to quiet title to the same,” now embodied in sections 809 to 813 of the Code. It also contains other averments which, taken with those just adverted to, make a case for the removal of a cloud from complainant’s title under general principles of equity jurisprudence, if in this latter aspect it is not insufficient in respect of offering to do equity; and there is a prayer for interlocutory injunctive relief, for the cancellation of a certain paper writing purporting to be a deed executed by complainant to respondent and for perpetuation of the injunction. These latter averments and the relief sought are beyond and cumulative upon the averments and relief necessary and ob406 tamable imder a statutory bill. Thus going beyond the statute in averment and seeking relief wbicli it does not warrant, tbe bill as a whole would be bad if it discloses that complainant has received the consideration mentioned in the deed which it seeks to have cancelled as a cloud on title, and fails to offer to do equity by refunding what it 'has 'so received from respondent; and such a defect in ordinary cases could be challenged by a motion to dismiss for want of equity. But not so in respect of a bill of the hybrid character of this one, resting upon and making a case under the statute, and at the same time going beyond the statute and attempting to present a case on general equity principles, for it cannot be at all said that such a bill contains no equity. It could of course be amended by striking out all save the statutory averments in which case it would not disclose any occasion for an offer to do equity and would, therefore, not be objectionable even on demurrer for the absence of such offer. Or left to stand as it is, it would, and does, embody ’all the facts and the prayer upon which the statutoi’y equity rests and is grantable; and in its present form, assuming that it should offer to do equity and does not, the defect cannot be reached by a motion to dismiss for the Avant of equity, for it clearly has the statutory equity, but by a demurrer going to its sufficiency considered as a bill for relief over and above and beyond that complainant would be entitled to under the statute.—Inter-State Building & Loan Association v. Stocks, 124 Ala. 109, and see also Ward v. Janney & Cheney, 104 Ala. 122; Chency, Trustee, v. Nathan, 110 Ala. 254. We are, therefore, of the opinion that the chancellor properly Overruled the motion to dismiss the bill for want of equity. We do not consider whether the bill as it now stands is demurrable for its pretermission of an offer to pay back the money paid by the respondent, nor whether, if the bill were amended so as to contain only the statutory averments, thus eliminating all reference to the payment of money by respondent, the latter could by ansiver or cross-bill present the facts in that connection and have the relief sought by com [407] plainant conditioned upon the refunding of tbe money paid by respondent. Affirmed.