Opinion
8 Div. 367.
April 6, 1922.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bradford and W. C. Rayburn, all of Guntersville, for appellant.
The amended bill does not make an entire change of cause of action. Section 3126, Code 1907; 201 Ala. 508, 78 So. 862; 202 Ala. 291, 80 So. 356; 90 Ala. 470, 7 So. 920; 102 Ala. 276, 14 So. 663, 48 Am. St. Rep. 37; 117 Ala. 344, 23 So. 30. Rice cannot raise the objection that Davidson and Jaggers were improperly joined as parties respondents, as it is a matter personal to them. 91 Ala. 375, 8 So. 290; 67 Ala. 274; 85 Ala. 56, 4 So. 140. Davidson and Jaggers are not without subject-matter in the suit. 1 Street's Fed. Equity Prac. §§ 425, 426; Sim's Chanc. Prac. §§ 171, 234, 261.
John A. Lusk Son and D. Isbell, all of Guntersville, for appellees.
Brief of counsel did not reach the Reporter.
As amended, the bill of complaint contains allegations sufficient to authorize the relief sought, viz. the cancellation of the deed purporting to have been executed by John R. Davidson to W. B. Rice on February 16, 1916, as a cloud on complainant's title to the tract of land claimed by him, and the quieting of his title thereto; the one relief being incidental to, and in aid of, the other.
Conceding, without deciding, that Charles Davidson and John Jaggers are improperly joined as parties respondent to the bill as amended, and that they have no interest whatever in the litigation between the complainant and Rice, the objection to their joinder is personal to them, and cannot be raised by Rice. Bolling v. Vandiver, 91 Ala. 375, 8 So. 290; Campbell v. Davis, 85 Ala. 56, 4 So. 140.
Manifestly the case made by the amended bill for cancellation of the deed referred to does not change the primary purpose and equity of the bill, which is to effectually quiet complainant's title; no relief being sought against the added parties respondent.
It may be that a furtive purpose of the amended bill is to secure a res judicata as to the deed in question in favor of these added parties respondent as against the respondent Rice, which would be effective in any future litigation between them. But however that may be, and whether or not an adjudication in favor of the complainant establishing the invalidity of the deed as to him would be effective in favor of the other respondents, under the state of the pleadings exhibited, that question cannot be now determined on demurrer to the bill.
We hold, therefore, that the trial court erred in sustaining the demurrer to the bill as last amended, and the decree appealed from will be reversed, and one here rendered overruling the demurrer.
Reversed, rendered, and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.