This is an appeal by the respondent and cross-complainant from a final decree of the circuit court of Blount County, in equity, granting relief to the complainant and cross-respondent.
This is the second time this case has been here. The former appeal, reported as Cox v. Cox, 260 Ala. 524, 71 So.2d 275, was brought by the complainant from a decree overruling his demurrer to the respondent's cross-bill. We reversed and remanded and the case then proceeded to a final decree on the merits. All of the evidence was taken before commissioners.
On September 8, 1950, appellant, then the the wife of appellee, filed a bill for divorce against appellee in the circuit court of Blount County, in equity. On December 26, 1950, a decree was rendered by that court granting appellant a divorce, awarding her custody of the parties' two minor chidren, and vesting in her title to certain personal property. In addition, appellee was ordered to pay appellant alimony in the amount of $2,500 within thirty days, together with a solicitor's fee in the amount of $600, to be taxed as costs, and $75 per month for the education, support and care of the two minor children. The decree also provided "that all the several amounts herein decreed to be paid by respondent shall be a lien on the lands of respondent" described in the bill for divorce
In response to a motion by appellee the decree was modified on January 12, 1951, by changing the allowance of $75 per month to a flat $600 per year payable each year on or before January 10th, and by further providing that "such sums shall not be a lien on the property of respondent."
On February 13, 1951, a decree was rendered in said cause directing the register to sell the lands described in the divorce decree to satisfy the sums decreed against appellee and further providing that in event sufficient funds should not be realized from such sale to satisfy the amounts decreed in favor of appellant, the register was directed "to issue an execution commanding the sheriff to levy on any other property" of appellee in Blount County. Pursuant to this directive the register, on March 12, 1951, sold the lands of appellee described in the divorce decree. Such lands were not all the lands owned by appellee. At the sale appellant became the purchaser for $1,500. She was the only bidder at the sale. Following this sale the register issued execution commanding the sheriff to levy on the lands and property of appellee, whereupon the sheriff made his return describing
The present suit was brought by appellee to have the above sales set aside or, in the alternative, to effect redemption. The trial court granted relief to appellee on that aspect seeking to have the sales set aside. The decree recites that in view of such holding "it is obviously unnecessary to proceed with the other aspect in this decree."
The basis for the relief granted is thus stated in the decree:
In addition to the foregoing, the decree contains the following:
The position taken by appellant is (1) that the price she paid for the lands was
In this case we are not dealing with sales to a stranger, nor with sales which have been confirmed by the court ordering them. In essence, we have a case which calls for exercise of the trial court's discretion in determining whether, under all the surrounding circumstances, sales ordered by it should be vacated.
Code 1940, Tit. 7, § 561, provides as follows:
This court has held that the question of setting aside a judicial sale under the provisions of § 561 is one to be resolved in the exercise of a sound judicial discretion. Sieben v. Torrey, 252 Ala. 675, 677, 42 So.2d 621; De Loach v. White, 202 Ala. 429, 430, 80 So. 813; Danforth v. Burchfield, 201 Ala. 550, 551, 78 So. 904. See, also, 30A Am.Jur., Judicial Sales, §§ 122, 123 and 125, pp. 971-973. From De Loach v. White, supra, is the following [202 Ala. 429, 80 So. 814]:
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Also appropriate in the case now before us is the following from Danforth v. Burchfield, supra [201 Ala. 550, 78 So. 905]:
The rule is thus stated in 30A Am.Jur., Judicial Sales, §§ 122, 123 and 125, pp. 971-973, supra, viz.:
Upon consideration of all the circumstances we are not willing to disturb the action of the trial court in vacating the sales.
We make it clear that on this appeal no question is presented as to the propriety of proceeding by an independent bill in equity to have the sales vacated. See Woodall v. Orr, 219 Ala. 681, 682, 123 So. 220; Danforth v. Burchfield, supra; Francis v. Sheats, 153 Ala. 468, 472-473, 45 So. 241, 127 Am.St.Rep. 61.
It is apparent, from reading the bill, that its purpose is to set aside the two sales or, in the alternative, to permit redemption from such sales. Although there is an offer to do equity and a prayer for general relief there is no allegation that respondent is indebted to the complainant and that such indebtedness should be set off against any amount ascertained to be due the respondent. In other words, no issue as to a setoff is made by the bill. We think this was essential to authorize the relief granted appellee in that respect. Accordingly, the decree to that extent must be reversed.
Although there was evidence supportive of the trial court's findings, nevertheless there were no allegations warranting relief by way of setoff. It appears to be appellee's position that such relief was appropriate under his prayer for general relief. But it has been held that "relief under the general prayer must be consistent with the allegations of the bill." Owen v. Montgomery, 230 Ala. 574, 576, 161 So. 816, 817. See, also, Northcutt v. Northcutt, 262 Ala. 98, 101, 77 So.2d 336; Wood v. Cantrell, 224 Ala. 294, 296, 140 So. 345; Hill v. Johnson, 214 Ala. 194, 197(12), 106 So. 814. In Northcutt v. Northcutt, supra, it is said [262 Ala. 98, 77 So. 338]:
Here, the case made by the bill does not embrace any claimed right to a setoff.
The rule is thus stated in Wood v. Cantrell, supra [224 Ala. 294, 140 So. 346]:
From Hill v. Johnson, supra, is the following [214 Ala. 194, 106 So. 816]:
Here, the relief by way of setoff, granted under the prayer for general relief, does not meet the case made by the pleadings.
Appellee seems to place considerable reliance on the following statement in Dillard v. Gill, 254 Ala. 5, 8, 47 So.2d 203, 205, viz.:
It is clear, from reading the whole opinion, that the quoted portion was not intended as an infringement on the established principle that relief under a general prayer must be consistent with allegations of the bill. For instance, in the preceding paragraph of the opinion it is stated as follows: "The relief sought involves a recognized equitable remedy when properly sustained by averment." [Emphasis supplied.]
There is no occasion to determine whether it would have been proper, if relief by way of redemption had been decreed in favor of appellee, to have balanced the accounts, so to speak, between the parties, as was attempted to be done in the decree.
From what we have said it follows that the decree is due to be affirmed insofar as it vacates the sales and is due to be reversed insofar as it decrees a setoff in favor of appellee.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.