Worthington v. Miller

DOWDELL, J. — The bill in this case was filed for the purpose] of removing cloud from complainant’s title. The general rule in such cases is, and one too> well set-tied by the adjudications of itlhis court to admit of question, that a party out of possession cannot maintain the bill. — Plant et al. v. Barclay, 56 Ala. 561; Smith v. Cockrell, 66 Ala. 64; Griggs v. Swindall, 67 Ala. 187; Pettus v. Glover, 68 Ala. 417; Betts v. Nichols, 84 Ala. 278; Teague v. Martin, 87 Ala, 500. There are, however, exceptions to this rule, one of which being that a bill filed by a remainderman pending the possession by the life tenant. — Lansdon v. Bone, 90 Ala, 448; Woodstock Iron Co. v. Fullenwider, 87 Ala. 586-7. As to all of the land described in the bill, except the parcel designated as “lot 19 in block 99,” the complainant has her remedy at law in an action of ejectment, or the corresponding statutory action in the nature of ejectment, and, therefore, the bill is without equity save as to lot 19 in block 99. The bill shows, that the respondent Caroline Worthington is rightfully in possession of this particular lot as a life tenant, and the complainant’s claim of title is that of a remainderman. The demurrer, however, which raises the question of complainant’s remedy at la.w, is> directed to the entire bill, [427] and for that reason was properly overruled, since the bill contained equity as to lot 19 in block 99. The complainant’s title was acquired under a judicial sale, and cannot be collaterally assailed for inadequacy of price paid. — Howard v. Corey, 126 Ala. 283. The bill alleges that the deed of Mrs. Worthington, which constitutes the cloud on complainant’s title, was obtained through fraud and collusion with her son, W. H. Worthington. It is charged that Mrs. Worthington on a pretended and fictitious claim against her son, W. H. Worthington, by collusion with the said W. II. for the purpose of defrauding his creditors and covering up his property, obtained a judgment against said W. H. and under execution on said judgment, had the property in question levied upon and sold, she becoming the purchaser and receiving a sheriff’s deed at such sale. The charges are that the claim against her son was a pretended-and fictitious one, and that in fact she paid no consideration for the- property. If this be true, and these averments are taken as confessed on demurrer, she is in no position tlo complain of the smallness of the price bid and paid at an, execution sale by a creditor against W. H. Worthington, made subsequent to her collusive judgment and! execution sale. The value of the property Avas- depreciated by her own conduct. There is nothing in the demurrer as to misjoinder of parties respondent. Analogous lio a bill to set, aside a fraudulent conveyance, under the allegations of collusion and fraud in the present bill Avhereby the alleged cloud Avas created, the collusive debtor occupies the position of the fraudulent! gralntor, and though not an essential party, is'not an improper p-arty defendant. Moreover', an improper joinder of W. H. Worthington as a co-defendant Avith Mrs. Worthington cannot be taken advantage of on demurrer by the latter. If he Avere improperly joined, he alone could raise the question. There is no- appeal in the case by him; the appeal is taken in the name of Mrs. Worthington alone. The appeal is irregular in that it was not sued out in the name of both defendants, but-as no-point is made on this, Ave pass it over, since the irregularity is such a on-e as might have been cured by an amendment. [428] However, as W. H. Worthington did not join in the appeal, and the appeal not having been sued out by Mrs. Worthington in his behalf, he is not a party, and assignment of errors made by him cannot be considered. Where a bill sets forth facts which entitle the complainant to relief, it is no objection to the bill that it avers cumulative facts. — Noble v. Moses, 81 Ala. 548. The averments in the bill in relation, to the trusteeship of Mrs. Worthington are to be taken in connection with other averments upon which complainant bases her claim to relief, and as the statement of additional facts which 'tend to support such other averments. The theory being, that as trustee, in carrying out the trust, no indebtedness could have arisen from the cestui que trust to the trustee during the period of the trust, that be-, ing the time alleged in the bill when it is claimed that the pretended indebtedness from W. IT. Worthington arose, unless 'there was a breach of the trust. The bill seeks no relief on account of any breach of the trust. There is no merit in -the contention that the complainant should be- required to redeem, for the reason, if for no other, that the bill avers that the defendant Caroline Worthington paid nothing for the land. If. her claim was fictitious and pretended as alleged, she would be entitled to nothing from a redemptioner. A redemption would necessarily have to proceed upon the supposition of the validity of her judgment against W. H. Worthington. Nor is there any merit in the contention that the complainant does not offer to do equity, by offering- to accept the amount of her judgment. This judgment had already been satisfied to the extent of the amount bid by the judgment creditor at the execution sale under the judgment. By the execution sale whatever title the defendant Wm. H. Worthington had in the property passed by the sheriff’s deed! to the purchaser. This title, the bill shows, the complainant acquired' under bankrupt proceedings against Rosenstihl, who obtained the judgment against Worthington, and was the purchaser under the execution on the judgment, receiving the sheriff’s deed. We find no error in the decree overruling th e demurrers, and the decree will be affirmed.