Summary
In Griffin v. Griffin, 206 Ala. 489, 90 So. 907 (1921), J.M.E. Griffin took possession of a parcel of land as a parol gift from his father, Jerry Griffin. 206 Ala. at 489-90, 90 So. at 907.
Summary of this case from Horton v. PerkinsOpinion
7 Div. 201.
October 20, 1921.
Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.
O. D. Street, of Guntersville, for appellant.
A bill to quiet title and to compel conveyance are obviously inconsistent. 142 Ala. 405, 38 So. 262; 189 Ala. 124, 66 So. 506; 75 Ala. 364. As a bill to quiet title it is insufficient, and is also insufficient as a bill for specific performance. 59 Ala. 591; 75 Ala. 363; 205 Ala. 91, 87 So. 346; 121 Ala. 580, 25 So. 631; 19 Ala. 398; 23 Ala. 649; 70 Ala. 276. So long as complainants are in undisputed possession of the land, they cannot file a bill for reimbursement. Authorities supra. It is certain that complainants must account for the rent, and the failure to offer to do so renders the bill demurrable. 202 Ala. 331, 80 So. 413. An administrator was necessary. 77 Ala. 603; 129 Ala. 214, 29 So. 920.
E. O. McCord Son, of Gadsden, for appellees.
Brief of counsel did not reach the Reporter.
The appellant cannot complain of the action of the trial court in overruling his demurrer to the bill of complaint as he suffered no injury thereby. In other words, the trial court denied the complainants relief both as to quieting title and specific performance, and the only relief awarded was in allowing the complainants compensation for the improvements on the land, less the rental value of the lot, as a condition precedent to the relief sought by the respondent by way of cross-bill. The respondents' answer was not a mere traverse of the bill of complaint, but was made a cross-bill and sought affirmative relief, under the authority of Jenkins v. Jonas Schwab Co., 138 Ala. 664, 35 So. 649; Cheney v. Nathan, 110 Ala. 254, 20 So. 99, 55 Am. St. Rep. 26. The said cross-bill did not question or deny the complainants' right to compensation for improvements, in case there was a parol gift of the lot, but sought to get the benefit of rents in the event compensation was allowed for improvements. Moreover, the trial court had the authority and it was its duty to require the cross-complainant to do equity as a condition precedent to the relief sought and granted under the cross-bill, and which merely required him to pay the value of the improvements made upon the land by the donee, less the rent of the lot before a restoration of the possession under the title adjudged to be in the cross-complainant.
While the evidence established to the satisfaction of the trial court, and with which we are in accord, that there was a parol gift of the lot from Jerry Griffin to his son, who went into possession and made valuable improvements upon same, these facts did not warrant or authorize a specific execution of the gift by a court of equity, but did authorize the award of compensation to the donee, or his representative, for the improvements, less the rent as a condition precedent to the affirmative relief sought by the cross-complainant. Evans v. Battle, 19 Ala. 398; Pinckard v. Pinckard, 23 Ala. 649.
The trial court in awarding compensation for the improvements, less the rent, seems to have applied, by way of analogy, section 3847 of the Code of 1907, and which we are inclined to think is equitable, notwithstanding said section applies to adverse holders of land in actions of ejectment. Cases dealing with the rights of purchasers to compensation for improvements in case of a failure to secure a specific performance are quite numerous. Jonas v. Gainer, 157 Ala. 221, 47 So. 142, 131 Am. St. Rep. 52, and cases there cited. They use the words, "compensation," "reimbursement," "pay for improvements," etc., as well as "reimbursed for what was expended." We do not think, however, that any of them intend to confine the amount to what was actually paid out, as that would exclude labor and work by the party in making the improvements; but are of the opinion that they intended to compensate the party for the value of the improvements made upon the land at the time of the trial less the fair rental value of the land without the improvements.
We do not think that this case should be reversed because of the absence of an administrator, as the bill averred that this was all the property owned by the decedent and this question was not raised by demurrer. Nor can the point be taken by the court because of the absence of an indispensable party, as the proof shows that the decedent left no debts, and these respondents to the cross-bill are his only lawful heirs.
The decree of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.