Southern States Fire Ins. v. Kelley

65 So. 328, 186 Ala. 259, 1914 Ala. LEXIS 393

Opinion

SOMERVILLE, J. —

The bill of complaint does not show a delay in the assertion of complainant’s rights equal to the analogous statute of limitations at law, and hence special matters excusing his delay need not be alleged in the bill. Prima facie, such a delay is not. laches, and the facts which render the delay culpable in a court of equity must be set up by way of defense.—Fowler v. Ala. I. & S. Co., 164 Ala. 414, 51 South. 393. The demurrer to the bill on' these grounds was properly overruled.

While a prayer for unconditional cancellation or restoration of- a note, which is shown to have been transferred to a purchaser, might render the bill demurrable in part (South. States, etc., Co. v. Whatley, 173 Ala. 101, 55 South. 620), it is eminently proper that the defendant should be given an opportunity to return the note, if perchance he can; and a prayer for either restoration or, in default thereof, a decree for the amount of the note, for which complainant is made and remains liable by reason of its transfer to a purchaser for value, does not fall within the rule announced in the' case above cited, and does not render the bill demurrable.

The decree overruling the demurrers to the bill as a whole, and in part, will be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.