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

Sloss-Sheffield Steel & Iron Company v. The Board of Trustees of the University of Alabama. Bill in Equity for the determination- of Claims to Land and to quiet Title, and for other Belief. 3. Bill to determine and qtiiet title; offer to do equity. — A bill filed under the statute “to compel the determination of claims to real estate in certain cases, and to quiet the title to the same” (Code, §§ 809-813), need not offer to do equity. 2. Same; same; motion to dismiss; demurrer. — A hill containing the necessary allegations and prayer under the statute “to compel the determination of claims to real estate in certain cases and to quiet title to the same” (Code, §.§ 809-813), and also additional averments and prayer for relief under the general principles of equity for the cancellation of instruments is not subject to a motion to dismiss for want of equity, because it fails to allege a return or an offer to return the consideration for the instrument sought to be cancelled; a demurrer being the appropriate method to reach such defect, if it be a defect, in the bill. Appeal, from the Chancery Court of Jefferson. Heard before the I-Ion. John C. Carmichael. The hill in this ease was filed by the Board of Trustees of the University of Alabama against the Sloss-S'hef-field Steed & Iron 'Company, under the 'statute (Code, 809-813) to compel the determination of the claim of said Sloss-Sheffield Steel & Iron Company to certain real estate which was described in the hill by the government 'survey. This litigation arose out- of the attempted sale of 4,4=80 acres of the lands belonging to the University of Alabama. The bill charged that the sale was founded upon an illegal resolution purporting to have been passed at a called meeting of the Board of Trustees. The call for said alleged meeting was averred to be unauthorized, and the said resolution invalid for this and various other reasons specifically set forth in the 'bill. The bill alleged that the complainant was in peaceable possession of the property in controversy, under claim of ownership, and that the defendant claimed, or was reputed to claim some right, title or interest in, or encumbrance upon said lands, and that no suit was pending to enforce or test the validity of such title, claim or encumbrance. The prayer of the bill calls upon the defendant to set forth and specify its title, claim, interest or encumbrance, and how, and by what instrument the same was derived and created. There were additional allegations and appropriate prayer seeking to bring the case within the influence of the general jurisdiction of equity for the cancellation of instruments, but in view of the opinion, a statement of these allegation® becomes! unnecessary. The cause was submitted upon a motion to dismiss for want of equity, and a decree was rendered overruling said motion. From this decree the respondent appeals and assigns the rendition thereof as error. Walker, Tillman, 'Campbell & Porter, for appellant, filed a written argument, in which they insist that the bill i® without equity, in failing to allege a return, or an offer to return, the consideration received for the instrument sought to be cancelled, citing the following authorities: Neblett v. McFarland, 92 U. S. 103; Latham v. Hickey, 21 La. Ann. 425; Lee v. Taylor, 21 La. Ann. 514; Bell v. Graig, 52 Ala. 215; Goodman v. Winter, 64 Ala. 410; Robertson v. Bradford, 73 Ala. 116; Goppedge v. Threadgill,.3 Snead, 577; Masson v. Booet, 1 Denio 69; Evans v. Gayle, 17 N. H. 573; Fay v. Oliver, 20 Vt. 118; Burton v. Stewart, 3 Wend. 23é. Sterling A. Wood, Pitares Coleman and James B. Head, contra. Upon a motion to dismiss for want of equity all amendable defects are treated as if made. Seals v. Robinson, 75 Ala. 363; Hooper v. S. & M. R. R. Go., 69 Ala. 259; Harland v. Persons, 93 Ala. 273. A bill containing all the 'averments; necessary under the statute to settle claims to real estate is maintainable in equity. — Code, 1896, §§ 809-813; Oheney v. Nathan, 110 Ala. 254; Adler v. Sullivan, 115 Ala. 582; Ward v. Janney, 104 Ala. 122; Parker v. Boutwell, 119 Ala. 297; Interstate B. cG L. Assn. v. Stocks, 27 So. Rep. 506; Southmayd v. City of Elisabeth, 29 N. J. Eq. 203. A complaint, in a bill properly filed under the statute, which contains additional averments and aslrs for additional relief, may be entitled to the relief provided for in the statute, although the additional averments may not, of themselves, be sufficient to authorize additional relief. — Oheney v. Nathan, 110 Ala. 254; Interstate B. <£- L. Assn. v. Stocks, 27 So. Rep. 507. A complete submission to the jurisdiction of the court is a sufficient compliance with the rule requiring the complainant to do equity. — Neto Eng. Mort. Security Co.. 109 Ala. 148; Allgood v. Bank of Piedmont, 15 Ala. 523; Bowen v. Watson, 74 Ala. 323; Branch Bank v. Strother, 15 Ala. 51; George v. New Eng. Mort. Sec. Go., 109 Ala. 148; Alqood v. Bank of Piedmont, 115 Ala. 418. [MAJORITY — McCLELLAN, C. J.] 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 ob-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 complainant conditioned upon the refunding of tbe money paid by respondent. Affirmed.