Opinion
6 Div. 279.
May 18, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Robert G. Messer, of Birmingham, for appellant.
A bill is inconsistent and repugnant where the court could not determine certain relief for complainant on decree pro confesso from the averments of the bill alone. Moog v. Talcott, 72 Ala. 210; Friedman v. Fennell, 94 Ala. 570, 10 So. 649; Brooks v. Lowenstein, 124 Ala. 158, 27 So. 520; 21 C. J. 408. It is multifarious where unrelated causes of action or controversies between others than the parties to the bill are sought to be joined or brought into the matter being litigated. Ford v. Borders, 200 Ala. 70, 75 So. 398; Sicard v. Guyllou, 147 Ala. 239, 41 So. 474; Alabama G. S. R. Co. v. Prouty, 149 Ala. 71, 43 So. 352; Truss v. Miller, 116 Ala. 504, 22 So. 863. A bill is subject to demurrer where it shows affirmatively upon its face that there has been a failure to comply with the requirements of the statute of frauds. Code 1923, § 8034 (5); Strouse v. Elting, 110 Ala. 132, 20 So. 123; White v. Levy, 93 Ala. 484, 9 So. 164; Jonas v. Field, 83 Ala. 445, 3 So. 893. When written instruments are averred in pleading, such instruments must be set forth in substance or in hæc verba. Maloney v. Fulenwider, 213 Ala. 205, 104 So. 396; Nunnally Co. v. Bromberg Co., 217 Ala. 180, 115 So. 230; Doullut Williams v. Hoffman, 204 Ala. 33, 86 So. 73.
Coleman, Spain, Stewart Davies, of Birmingham, for appellee.
A demurrer addressed to the bill as a whole and separately and severally to each and every paragraph has the effect of a demurrer to the bill as a whole, and should not be sustained if there is any equity in the bill. Nelson v. Wadsworth, 171 Ala. 603, 55 So. 120; Oden v. King, 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413; Whiteman v. Taber, 203 Ala. 496, 83 So. 595. A bill is not demurrable for repugnancy or inconsistency where, in each alternative, it relates to the same transaction and concerns the same subject-matter. It is not inconsistent to seek foreclosure of vendor's lien for unpaid balance of cash consideration and purchase-money mortgage executed as part of the same transaction, conveying the same property, between the same parties. Morris v. Fidelity M. B. Co., 187 Ala. 262, 65 So. 810; Love v. Butler, 129 Ala. 531, 30 So. 735; Bankhead v. Owen, 60 Ala. 467; Chapman v. Chunn, 5 Ala. 397. To constitute multifariousness a bill must set forth several distinct matters perfectly unconnected, or where there is more than one defendant, the case of each must be separate and distinct from the other. Chapman v. Chunn, supra; Code 1923, § 6526. A partial payment of the purchase money, execution of the purchase-money mortgage and execution of deed, coupled with the fact that respondent is in possession of the property, or without that fact, is a sufficient compliance with the statute of frauds. Mancill v. Thomas, 216 Ala. 623, 114 So. 223; Pylant v. Reeves, 53 Ala. 132, 25 Am. Rep. 605; Smith v. Carson, 56 Ala. 456; Strong v. Waddell, 56 Ala. 471; Crampton v. Prince, 83 Ala. 246, 3 So. 519, 3 Am. St. Rep. 718; Bozeman v. Ivey, 49 Ala. 75. The mere fact that the agreement is never perfected by delivery of deed does not prevent enforcement of vendor's lien. Chapman v. Chunn, supra. Prayer for unwarranted relief does not render a bill demurrable. Wilks v. Wilks, 176 Ala. 151, 57 So. 776.
The demurrer is properly to be construed as interposed to the bill as a whole. Mary A. Roberts, Adm'x, v. Ferguson, 226 Ala. 594, 147 So. 894.
Defendant's argument that the bill is repugnant and inconsistent (citing Moog v. Talcott, 72 Ala. 210; Winkleman v. White, 147 Ala. 481, 42 So. 411) appears to be rested upon the erroneous assumption that complainant seeks the foreclosure of a mortgage and also the enforcement of a vendor's lien on the property. Whether there would be merit in the insistence otherwise, we need not stop to inquire, as a reading of the bill discloses that the sale of the land for the enforcement of a vendor's lien is the only relief sought. True, the deed and mortgage were never delivered, but held in escrow. They may nevertheless, together with the notes executed by defendant, be looked to as disclosing the contract between the parties (Jenkins v. Harrison, 66 Ala. 345; Johnston v. Jones, 85 Ala. 286, 4 So. 748; Chapman v. Chunn, 5 Ala. 397), and thus nondelivery does not affect them for this purpose.
Nor is the argument well founded that the bill shows complainant entitled to no relief by reason of the statute of frauds. Such statute is a matter of defense, which must generally be insisted on by answer or plea (Patterson v. Ware, 10 Ala. 444; Shannon v. Wisdom, 171 Ala. 409, 55 So. 102), and unless it affirmatively appears in the bill that a contract declared on is obnoxious to the statute of frauds, a demurrer will not lie (Strouse v. Elting, 110 Ala. 132, 20 So. 123; Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; 7 Ency. Dig. 548, 549). A reference to the writings above noted discloses that such cannot be said of the bill here considered.
Nor was the bill subject to demurrer for failure to attach as exhibits the deed and mortgage or recite their substance. These instruments were collateral, and not required to be set out in extenso, but may be made reference to according to their legal effect. Nunnally Co. v. Bromberg Co., 217 Ala. 180, 115 So. 230.
By way of recitation of the consideration, reference is made to the agreement that defendant was to pay a certain note of $43.72 to the Bankers' Mortgage Bond Company. Defendant insists this renders the bill multifarious, in that it involves a debt due the bond company, not a party to the cause. But this sum, it is alleged, was to be paid to complainant and form a part of the consideration of the sale. We find in these averments no element of multifariousness.
We have considered the assignments of demurrer interposed and argued, and conclude they are without merit. The decree will be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.