Opinion
8 Div. 392.
January 15, 1948.
Appeal from Circuit Court, Marshall County; W. J. Haralson, Judge.
Scruggs Grass, of Guntersville, for appellant.
Roy D. McCord, of Gadsden, and P. W. Shumate, of Guntersville, for appellee.
The bill is for the cancellation of a deed executed November 25, 1943, by appellee to appellant, and from an interlocutory decree overruling the demurrer to the bill this appeal has proceeded.
The pertinent pleading in this case is in all respects identical with the pleading in the case of Wells v. Wells, 249 Ala. 649, 32 So.2d 697, recently decided by this court, and the instant appeal is governed by the decision in that case.
The demurrer was to the bill as a whole and, since the bill contained equity in the aspect seeking a cancellation as for undue influence in the execution of the deed, the demurrer was properly overruled. This would be so even though in stating the equitable right to relief, the right be defectively pleaded, the defective pleading being considered as amended on consideration of such demurrer. Wells v. Wells, supra; Jefferson v. Jefferson, Ala.Sup., 33 So.2d 883; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67; Johnson v. Pugh et al., 239 Ala. 12, 193 So. 317; Hogan v. Bailey, 234 Ala. 64, 173 So. 605; First Nat. Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So.2d 348; Williamson v. State, 244 Ala. 609, 14 So.2d 587.
Post, p. 269.
The decree is affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.