49 C.J. 507; 30 C.J. § 813; McCrory v. Guyton, 164 Ala. 365, 51 So. 312; Nelson v. First Nat. Bank, supra. An amendment is not allowable if its averments require proof of additional facts. 41 Am.Jur. 504; Kunselman v. Southern P. R. Co., 33 Ariz. 250, 263 P. 939; Allen v. Tuscarora Val. R. Co., 229 Pa. 97, 78 A. 34, 30 L.R.A., N.S., 1096, 140 Am.St.Rep. 714; 12 Words Phrases, Perm.Ed., 86. An amendment constitutes a departure from the original bill if it sets up matters barred by the limitations of actions. Nelson v. First Nat. Bank, supra; Fraser v. R. W. Allen Co., 19 Ala. App. 55, 94 So. 782. An amendment must concern itself with the same transaction or contract that was set up and relied on in original bill. 49 C.J. 511; Garrett v. First Nat. Bank of Montgomery, 233 Ala. 467, 172 So. 611; King v. McAnnally, 234 Ala. 479, 175 So. 546. C. W. Gross, of Tuscaloosa, for appellees.
It was held in Sloss-Sheffield Steel Iron Co. v. Yancey, 201 Ala. 200, 77 So. 726, that a bill to quiet title brought under the statute, Sections 5443 and 5446, Code of 1907, now Section 1109 et seq. of Title 7, Code of 1940, could be converted into a bill to remove a cloud from title, and that the change was not such as to constitute a departure. See also Garrett v. First Nat. Bank of Montgomery, 233 Ala. 467, 172 So. 611; King v. McAnnally, 234 Ala. 479, 175 So. 546; Joiner v. Glover, 201 Ala. 279, 78 So. 55; Smith v. Gordon, 136 Ala. 495, 34 So. 838. Sec. 1109 et seq., Title 7, Code of 1940, does not take away the jurisdiction of equity to remove a cloud from title which the equity courts had prior to the passage of the statute.
Littleton v. Littleton, 238 Ala. 40, 188 So. 902; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12; Truss v. Miller, 116 Ala. 494, 495, 22 So. 863. Amendment seeking to adjudicate rights in same property, among same parties, and growing out of same transaction does not work a departure. King v. McAnnally, 234 Ala. 479, 175 So. 546; Garrett v. First Nat. Bank, 233 Ala. 467, 172 So. 611; Ex parte Delpey, 188 Ala. 449, 66 So. 22; Ingraham v. Foster, 31 Ala. 123. Bill for accounting of partnership by personal representative of deceased partner against surviving partner is not barred if brought within six years after partnership transaction. Stovall v. Clay, supra; Wells v. Brown, 83 Ala. 161, 3 So. 439.
But we think it did not intend to change the rule laid down in King v. Avery, supra. As said in that case, if the amendment brings up matter which varies the allegations as to a subject already in issue within the lis pendens, the statute does not run after the bill is filed. See, Garrett v. First National Bank, 233 Ala. 467, 172 So. 611; King v. McAnnally, 234 Ala. 479, 175 So. 546; McGowin v. McGowin, 232 Ala. 601, 169 So. 232. Limitations Here Applicable.
Lyons v. Taylor, 231 Ala. 600, 166 So. 15; Bowden v. Turner, 243 Ala. 182, 8 So.2d 849; Stewart v. Carnell, 235 Ala. 636, 180 So. 307; Moore v. Tucker, 228 Ala. 492, 154 So. 111; Prestwood v. Bagley, 227 Ala. 316, 149 So. 817; 21 C.J. 70. The substituted bill did not work a departure nor change of parties. Garrett v. First Nat. Bank, 233 Ala. 467, 172 So. 611; King v. McAnnally, 234 Ala. 479, 175 So. 546; Farmer v. Hill, 243 Ala. 543, 11 So.2d 160; Edwards v. Smith, 240 Ala. 397, 199 So. 811; Ex parte Cabaniss, 235 Ala. 181, 183, 178 So. 1; Hays v. McCarty, 239 Ala. 400, 195 So. 241. Earney Bland, of Cullman, S. A. Lynne, of Decatur, Herman J. Stewart, of Cullman, and Wm. E. James and Phil Joiner, both of Birmingham, for appellees.
The subject matter, the parties and the essential facts are the same, and the amendment presents no new cause of action. King v. McAnnally, 234 Ala. 479, 175 So. 546; Neal v. Williams, 168 Ala. 310, 53 So. 94, and authorities cited in the note to Equity Rule 15, Vol. 7, Appendix, p. 1055, Code 1940. Upon the question of fraudulent representation the rule is that when the statement of fact is assumed to be within the knowledge of the person making it (and the amended bill here so discloses), the other has the right to rely on its truth, and in the absence of anything to arouse suspicion is not bound to make inquiry or examine for himself. Parker v. Ward, 224 Ala. 80, 139 So. 215.
Butler Cot. Oil Co. v. Collins, 200 Ala. 217, 75 So. 975; Wade v. Bank of Gaylesville, 216 Ala. 539, 113 So. 617; 8 C.J. 1559. The decree was in error in fixing and allowing attorney's fee. Code 1923, §§ 6261, 9319; Matthews v. Lytle, 220 Ala. 78, 124 So. 197; De Ramus v. De Ramus, 205 Ala. 219, 87 So. 354; Keith v. Forsythe, 227 Ala. 555, 151 So. 60; Willett v. First Nat. Bank, 234 Ala. 577, 176 So. 344. Counsel for complainants was not entitled to fee for representing interests of adverse claimants. 7 C.J.S., Attorney and Client, page 823, § 47. It was error to decree the conveyance from Robert L. Spence to appellant void. Holden v. Holden, 235 Ala. 436, 179 So. 523; Thomas v. Holden, 191 Ala. 142, 67 So. 992; Code 1923, §§ 6822, 6824; King v. McAnnally, 234 Ala. 479, 175 So. 546; Ivey v. May, 231 Ala. 339, 164 So. 732; Weaver v. Carothers, 228 Ala. 157, 153 So. 201; Hale v. Hale, 201 Ala. 28, 75 So. 150; White v. Farley, 81 Ala. 563, 8 So. 215; Hughes v. Dempsey, 209 Ala. 375, 96 So. 435; Hughes v. Bullen, 209 Ala. 134, 95 So. 379. It was error to decree the instrument by D. M. Spence to be a will and insufficient as such. Equity may enforce a claim under a defective deed. Turk v. Turk, 206 Ala. 312, 89 So. 457; 1 C.J.S., Acknowledgments, § 6, p. 781.
BROWN, Justice. The equity of the bill, and its sufficiency as against the defendants' demurrer, was settled on the first appeal, King et al. v. McAnnally, 234 Ala. 479, 175 So. 546. This appeal is from the final decree granting the complainant relief, and the decree confirming the Register's report, ascertaining the difference between the market value of real estate at the time of the sale and the price paid therefor, with interest, declaring a lien on the real estate, and ordering a sale thereof, unless said balance was paid.
While there is some confusion in our decisions as to the sufficiency on demurrer of the averments in a bill seeking to set aside deeds falling within the influence of the statute, Code 1923, § 6822, on the ground that the grantor at the time of execution was mentally incompetent to contract, resulting probably from a failure to observe, in the particular case, the well-settled rule that on demurrer the pleading should be construed most strongly against the pleader, we are of opinion that the questioned averments in the present bill are equivalent to the allegation that the grantor "was insane and did not have sufficient mind to understand the business he was engaged in when transacting the same," and are therefore sufficient. King et al. v. McAnnally, 234 Ala. 479, 175 So. 546, 547. See Holman et al. v. Harper, 223 Ala. 100, 134 So. 863; Hale v. Hale et al., 201 Ala. 28, 75 So. 150; Todd v. Ward, 201 Ala. 205, 77 So. 731; Hall v. Britton et al., 216 Ala. 265, 113 So. 238.