8 Div. 288.
April 7, 1921.
Appeal from Circuit Court, Lawrence County; O. Kyle, Judge.
R. L. Almon, of Moulton, for appellants.
The bill contains no equity. Sections 4486, 4493, 5443, and 5444, Code 1907; 99 Ala. 281, 12 So. 775; 68 Ala. 463; 139 Ala. 247, 35 So. 647; 176 Ala. 565, 58 So. 920. The bill is multifarious. Section 3095, Code 1907; 125 Ala. 124, 29 So. 183, 82 Am. St. Rep. 222; 174 Ala. 438, 57 So. 20; 51 Ala. 574; 98 Ala. 363, 11 So. 743, 39 Am. St. Rep. 67; 68 Ala. 463; sections 4493 and 5231, Code 1907.
G. O. Chenault, of Albany, for appellee.
No brief reached the Reporter.
As pointed out in the opinion of the learned trial court, the bill of complaint in this case is defective as one to quiet title under the statute, as it does not set forth just which one of the respondents is asserting a claim or title to the land. It is also suggested in said opinion, and we think properly so, that the bill, as one to quiet title under the statute, injected an issue in the case which should more properly be set up by the respondents, or one of them, by a cross-bill, and suggested the case of Stacey v. Jones, 180 Ala. 236, 60 So. 823, as a guide. The trial court did not, however, sustain the demurrers, as none of them pointed out this defect.
The respondents prosecute this appeal and assign as error the overruling of those grounds of demurrer, testing the general equity of the bill, and that it is multifarious, because it seeks to quiet title under the statute and also to remove a cloud from the complainant's title by reforming a deed and canceling a certain clause inserted therein through the mistake of the scrivener. The bill is not bad because filed in a double aspect; that is, because it seeks to quiet title and also to reform a deed from the respondents to the complainant's grantor. In both aspects it relates to the same subject-matter between the same parties. Section 3095 of the Code of 1907; Macke v. Macke, 200 Ala. 260, 76 So. 26, and cases there cited. The case of Brown v. Feagin, 174 Ala. 438, 57 So. 20, is in no sense opposed to this holding. There, one alternative of relief sought was against third persons who had no interest in the other alternative — there was no community of interest.
It is also suggested in brief of appellants' counsel that the bill is bad as for a misjoinder of parties. That is, that the deed sought to be reformed is sufficient to convey the interest of the husband, and that the change can only affect the interest of the wife, and as to which the husband has no present interest but a mere expectancy in case of her death without devising the land to another. This is no doubt true, but the bill seeks to reform a deed wherein he is a cograntor and was a party to the transaction. Moreover, he has an interest in the result, as the bill charges that it is a warranty deed and he would be liable upon his warranty as for the failure of the title because part of the same was in the wife, who merely released her marital right as to his interest, and the deed as it now stands makes him the grantor and warrantor as to the entire title. Sims, Chan. Prac. § 160; Kinney v. Ensminger, 87 Ala. 340, 6 So. 72. The bill could no doubt be more specific as to the mutuality of mistake as to the printed clause in the deed, but this question is not assigned as error if it was raised by any ground of demurrer.
The decree of the circuit court is affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.