APPEAL from the District Court for the Middle District of Alabama.
On the 27th of November, 1871, Eliza House filed a bill in chancery, in the court below, against Andrew Mullen and twenty-one others.
The bill set forth that on the 16th of March, 1838, the said Eliza being then a married woman, a conveyance was made by one Lawrence to a certain Gibson, for the consideration of $2700, of the half or undivided moiety of lot No. 22, in the town of Selma, Alabama; that by mistake this was recorded as a conveyance of the half of the undivided moiety of said lot; that by the terms of the conveyance the trustee was to hold the property in trust for the benefit of her the said Eliza during her natural life, after which he was to convey in fee simple to such child or children as she might have living at her death. The bill further alleged that Gibson died in 1841, and Reuben House, the husband of the complainant, in 1868; that from the date of the deed from Lawrence to Gibson, the complainant lived on the premises, or received the rents and profits, until 1846; that during this time her husband and herself removed from Alabama to Florida; that the defendants were now in possession of the lot or parts of the same, claiming the whole of it as owners, and asserting title under a deed which they alleged to have been made by the complainant and her husband in 1846 to one Walker, which deed the complainant alleged that she did not sign and seal as her voluntary act and deed, freely and without compulsion of her said husband.
The bill prayed for the appointment of a trustee in place of Gibson, who was dead. It also prayed for a partition with the defendants, for an account of rents and profits, and for such other and further relief as to equity belonged.
Before anything further was done, the complainant obtained leave to file an amended bill, and an entire new bill was accordingly filed by her and Mary Hunter, and Charles Hunter, husband of the said Mary. What interest Mr. and Mrs. Hunter had in the matter, or how either was related to anybody concerned in it, was nowhere stated. As for the rest, the same matters were alleged in the new bill as in the old. To this new bill the defendants demurred.
The grounds of demurrer set forth were—
1. That if the complainants had any rights as shown by the bill, they were separate and distinct, and could not be joined in this suit.
2. That the bill did not show any interest of Mary and Charles Hunter in the subject-matter of the litigation.
3. That the defendants were improperly joined, inasmuch as they had separate and distinct interests which could not be joined in one suit.
4. And that the claim was stale, and barred by the statute of limitations and by the long acquiescence of the complainants in the possession of the defendants as shown by the bill.
The decree ran thus:
'This cause coming on, &c., . . . it is considered by the court that the said demurrer of the defendants . . . be sustained. It is, therefore, adjudged and decreed that the said bill of complaint of Eliza House, Mary Hunter, and Charles Hunter, be and the same is hereby dismissed out of this court.'
The reader will observe that the dismissal was general and absolute; not one for error or defect of parties or without prejudice.
From this decree the complainants appealed.
Mr. W. W. Boyce, for the appellants:
The second ground of demurrer, and to which we will first advert, was that no interest was specifically stated to exist in Mr. and Mrs. Hunter. But Mrs. Hunter was plainly the daughter of Mrs. House. The fact was inferable from the allegations of both bills, that the trust was for Mrs. House for life and for her child afterwards; from the patent fact that the child was a party in interest and necessary; and from the amended bill in which she was brought in. The omission to state in terms the relationship was evidently one merely accidental, which should not have been visited with the heavy penalty of such a dismissal as was made-an absolute one-but if with any dismissal at all with but one giving leave to amend.
But there was no ground for any sort of dismissal. The fact of heirship being shown as above it is, as a matter inferable, the first ground of demurrer falls away. Mrs. House and Mrs. Hunter had the same title; the former being equitable tenant for life and the latter tenant in remainder. The husband was rightly added for form.
The third ground of demurrer is bad, because all the defendants are alleged to be in possession under a deed made by the complainant, Mrs. House, which was executed under duress.
As for the fourth ground, the statute of limitations, &c., the bill was filed in November, 1871. Mr. House, the husband, it is alleged in the bill and admitted by the demurrer, died only in 1868. Till 1868 the complainant, Mrs. House, was under disabilities. Every ground of demurrer, therefore, was bad.
No opposing counsel.
Mr. Justice MILLER delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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