Opinion
5 Div. 597.
October 27, 1921.
Appeal from Circuit Court, Chilton County; B. K. McMorris, Judge.
Reynolds Reynolds and Lawrence F. Gerald, all of Clanton, for appellant.
An express trust is not shown. Section 3412, Code 1907; 147 Ala. 254, 40 So. 291. The fraud relied on to avoid the contract is not sufficient for that purpose. 100 Ala. 296, 14 So. 573; 114 Ala. 630, 21 So. 534; 162 Ala. 424, 50 So. 368. The bill is multifarious. 123 Ala. 634, 26 So. 222, 82 Am. St. Rep. 149.
W. M. Adams and J. B. Atkinson, both of Clanton, for appellee.
The bill is a good bill for establishing a constructive parol trust. 39 So. 664; 128 Ala. 600, 30 So. 543; 100 Ala. 612, 13 So. 679; 107 Ala. 331, 18 So. 277. The bill is not multifarious. 173 Ala. 142, 55 So. 781; 195 Ala. 501, 70 So. 143; 189 Ala. 13, 66 So. 720. The court properly dismissed the cross-bill. 178 Ala. 181, 59 So. 661; 7 May. Dig. 291.
The device, according to the averments of the bill, by which defendant (appellant) acquired title to the land in controversy, consisted not merely in a promise to convey to complainants, but in the procurement of their signatures binding them to the performance of a contract for the conversion of the timber on the land into lumber, thus imposing the burden of considerable engagements on them, and, we may assume, conferring benefits of consequences on defendant. These facts, sufficiently well pleaded, sufficed to create a constructive trust. Smith v. Smith, 153 Ala. 504, 45 So. 168; 3 Pom. Eq. Jur. (4th Ed.) § 1055. Complainants afterwards entered into a contract with defendant in which they seem to confirm defendant's title to the land; but the averment is that the defendant procured the execution of this contract by fraud, the facts being sufficiently pleaded, so that it should not be allowed to stand as an obstacle between complainants and the relief sought in the way of a conveyance of the land.
It is urged that complainants' bill is multifarious, because, in the alternative, it prays that the amount due on the lumber contract, if decreed to be of force and effect, be ascertained and decreed to be paid to complainants, and because the lumber contract, in its original memorandum form, purported to stipulate for the advantage of one of the complainants only. But the undertakings therein set forth are averred to have been for the benefit of all the complainants, so that neither that feature of the case alleged (McFadden v. Henderson, 128 Ala. 231, 29 So. 640) nor the prayer for alternative relief will now suffice to render the bill multifarious (Code, § 3095), nor would the bill be rendered multifarious by the fact — conceding it to be a fact, as demurrant alleges — that one of its alternative aspects contains no equity (Morris v. Morris, 58 Ala. 443).
We see no necessity for defendant's cross-bill, and hence no error in so much of the decree as sustained complainants' demurrer thereto. 7 Mayf. Dig. p. 291.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ, concur.