LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court of St. Clair County, in Equity, Ashville Division, overruling the demurrer of appellant Putman to the crossbill of appellee Davis.
The dispute concerns title to the NE¼ of the NE¼ of Section 2, Township 14, Range 4, in St. Clair County, a forty acre tract of land known as the John Jester place.
The proceedings in this case were instituted by Davis in an action of ejectment filed on the law side of the circuit court. Putman filed a motion to transfer the case to the equity side of the docket under authority of Title 13, § 153, Code of Alabama 1940, asserting in his motion for transfer that he had a defense to the lawsuit which could be presented only in the equity court. The motion was uncontested by Davis, and was granted by the court. Putman then filed a bill of complaint setting forth the facts of his equitable defense. The bill was not tested by demurrer.
The bill filed by Putman alleges, in substance, that he is the son of J. W. Putman who died testate in the year 1933; that by item four of his father's will he, complainant, was devised forty acres of land known as the "Old Tom Jenkins' place" (we note
That after the death of J. W. Putman, and during the year 1933, L. S. Putman, the executor of the will of J. W. Putman, deceased, with the consent of all of the heirs of J. W. Putman, deceased, entered into an agreement under the terms of which complainant, W. C. B. Putman, exchanged the forty acres of land known as the "Old Tom Jenkins' Place" for another forty acres of land described as follows, and which is the land involved in this suit,—the NE¼ of NE¼ of Section 2, Township 24, Range 4 (we assume in St. Clair County, Alabama); that he, complainant, was put into possession of said lands last above described in the year 1933 and has remained in the peaceable possession of said lands since that time, and has regularly and continuously assessed and paid the taxes thereon; that he, complainant, never went into possession of the tract of land devised to him by his father's will and that the same was later sold under an order or decree of the Circuit Court, in Equity, of St. Clair County; the bill then avers:
Complainant prays that upon final hearing, the court will decree that the purported sale to respondent Davis is void and of no effect, and that title to the disputed forty acres of land is in complainant, and that the deed to Davis be cancelled of record, and for general relief.
To the bill of complaint, respondent Davis interposed an answer which admitted the formal allegations of the bill and the further fact that he purchased the land involved when it was sold under an order of the Circuit Court, in Equity, of St. Clair County, and denied all other material allegations of the bill.
Later, respondent Davis filed a crossbill.
In substance, the cross-bill alleges that cross-complainant Davis acquired title to the lands involved, by virtue of a deed to him executed by L. S. Putman, as executor of the estate of J. W. Putman, deceased, and which deed was later confirmed by a decree of the Circuit Court in Equity of St. Clair County.
Cross-complainant prayed that a decree be entered awarding him possession of the lands involved and $500 for its detention, and for general relief.
This appeal is from the decree of the court below overruling the demurrer to the cross-bill.
In short, as we view it, the cross-bill simply asserts that cross-complainant, Davis, holds legal title to the land involved by virtue of a deed, executed by competent
Section 155 of Title 13, Code of Alabama 1940, reads:
Under the issues raised by the pleadings in this case, if the equity of the bill of complaint is proved, the cross-bill must, of necessity, fail. If complainant fails to prove the allegations of his bill, the crossbill, presenting a purely legal demand, would have to be retransferred to the law side of the docket under the provisions of section 155, supra. Emens v. Stephens, 233 Ala. 295, 172 So. 95. See also, Perry v. Warnock, 246 Ala. 470, 20 So.2d 867; Grove v. Robertson, 255 Ala. 346, 51 So.2d 528; Dean v. Griffith, Ala.Sup., 57 So.2d 545.
The demurrer to the cross-bill taking the point should have been sustained.
Reversed and remanded.
FOSTER, SIMPSON and GOODWYN, JJ., concur.