Hodnett v. Howle

91 So. 604, 207 Ala. 39, 1921 Ala. LEXIS 305

• Court: Supreme Court of Alabama
• Decided: December 22, 1921
• Docket: 5 Div. 810.
• Status: Published

Opinion

SAYRE, J.

Bill by Hodnett against his vendees in a duly recorded deed and their subvendees to declare complainant’s deed a mortgage and to redeem. Demurrer taking the point that the amended bill failed .to aver that the subvendees had notice of complainant’s alleged equity was sustained, after which this appeal. The defense of bona fide purchase for value without notice must be raised by averment of the facts constituting-the defense in the answer, by'plea, or, when the facts appear on the face of the complaint, by demurrer. Kelley v. Chandler, 184 Ala. 358, 63 South. 941; 2 Pom. Eq. Jur. (4th Ed.) § 784. And this court has heretofore held that, notwithstanding complainant’s hill may disclose the fact that defendant is possessed of a paper title, clear on its face, complainant, setting up an equity, is not required to aver notice in his bill, but defendant must invoke the defense by plea or answer. Hanohey v. Hurley, 129 Ala. 306, 30 South. 742; Knight v. Knight, 113 Ala. 597, 21 South. 407. As to the burden of proof in such cases, see Hightower v. Rigsby, 56 Ala. 126; Lambert v. Newman, 56 Ala. 623. We are not disposed to change the rule of pleading so established.

It results that the decree in this cause was in error. The demurrer should have been overruled as against all the demur-rants.

Reversed and remanded.

ANDERSON, C. X, and GARDNER and MILLER, JJ., concur.