Kelley v. Chandler

63 So. 941, 184 Ala. 358, 1913 Ala. LEXIS 603

• Court: Supreme Court of Alabama
• Decided: December 16, 1913
• Status: Published

Opinion

DOWDELL, C. J.

— This appeal is taken from the decree of the chancellor overruling the demurrer to the bill.

The demurrer is general and goes to the equity of 'the bill. The insistence of counsel in argument for the respondent, appellant here, and the only insistence, is the hill shows that the respondent Bank of Covington is the transferee of the legal title to the property in question, and fails to show that the bank had notice of the complainant’s equities.

The bill in the present case does not show, on its face, that the bank is a bona fide purchaser for value without notice. If it did, the defense might be available on demurrer. The general rule is that the defense of bona fide purchaser for value without notice is defensive matter that must be set up by way of plea or answer.— Hanchey v. Hurley, 129 Ala. 311, 30 South. 742; McKee v. West, 141 Ala. 531, 37 South. 740, 109 Am. St. Rep. 54; Gresham v. Ware, 79 Ala. 198; Wood v. Holly, 100 Ala. 350, 13 South. 948, 46 Am. St. Rep. 56; 2 Pom. Eq. Jur. § 784; Sims’ Chancery Prac. §§ 278, 468.

There was no error in the chancellor’s ruling, and his decree will be affirmed.

Affirmed.

McClellan, Sayre, and Somerville, JJ., concur.