Smith v. Murphy

58 Ala. 630

Opinion

STONE, J.

There are two points upon which the decree in this cause must be reversed. The deed of November, 1873, from Murphy and wife to Tanner, vested the legal title to the lands in the latter. When he died, the title descended to his heirs. The bill seeks to divest the title from Tanner’s heirs, and vest it in complainant, Thomas J. Murphy. To maintain snob bill, and to obtain such relief, it is indispensable that the heirs of Tanner should be parties. — Sto. Eq. Pl. § 188; Moore v. Murrah, 40 Ala. 573; 1 Brick. Dig. 753, §§ 1687, 1695; Ib. 755, § 1731; Ib. 756, §§ 1743, 1745 ; Kennedy v. Kennedy, 20 Ala. 571; Jennings v. Jennings, 9 Ala. 286; Thompson v. Campbell, 57 Ala. 183.

By executing an absolute deed to Tanner, the complainants armed him with a legal advantage, and rendered it necessary, if they would assert their alleged equity, that they become actors in the litigation. Being forced to seek equity, the rule is inflexible that they must offer to do equity; and if any balance of principal is found due from Murphy' to Tanner, such balance bears the statutory rate of interest. Pearson v. Bailey, 23 Ala. 537; Hunt v. Acre, 28 Ala. 580; 1 Sto. Eq. Ju. § 64e.

It follows, from what is stated above, that the pleadings in this cause must be amended, by making new parties defendants ; and this will render it necessary to retake the testimony. Upon certain points, we would prefer that the testimony should be fuller. We mention three, and counsel may discover others:

First. Whether, when the deed was made to Tanner, the note and mortgage were cancelled, or what disposition was made of them.

Second. When parts of the land were subsold, the proceeds of which, it is alleged, constituted the partial payments to the executors, with whose consent and approbation, if any, was this done V Had Tanner any, and what connection with this transaction ?

Third. Under what contract of renting, or otherwise, were the lands held and occupied during the year 1875?

As bearing on the main question in this cause, see McKinstry v. Conly, 12 Ala. 678; Eiland v. Radford, 7 Ala. 724; Williamson v. Culpepper, 16 Ala. 211; Robinson v. Farrelly, 16 Ala. 472; Turnipseed v. Cunningham, Ib. 501; Locke v. Palmer, 26 Ala. 312; West v. Hendrix, 28 Ala. 226; Peeples v. Stolla, 57 Ala. 53; Pearson v. Seay, 35 Ala. 612; s. c. 38 Ala. 643; Davis v. Hubbard, Ib. 185; Code of 1876, § 2199.

We abstain from expressing an opinion on the merits of this controversy, because the facts are not fully before us.

Beversed and remanded.