Abernathy v. Bankhead, 71 Ala. 190; Pate v. Bruner, 243 Ala. 648, 11 So.2d 356; Ex parte Rowell, 248 Ala. 80, 26 So.2d 554. A litigant should not ask a court to discover evidence in aid of his suit and ascertain whether he has a suit, and if so the amount of damages, until he has made some effort to ascertain same. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574; Moore v. Tucker, 228 Ala. 492, 154 So. 111. The death of one partner works the dissolution of the partnership and vests title to the property and debts in the survivor. Herren v. Harris, Cortner Co., supra. An offer to do equity is necessary in a bill for accounting. Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186; Sims Ch.Pract. ยงยง 643, 292; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769. The demurrer is to the bill as a whole, and is unavailing if the bill in any aspect has equity.
The omission of an offer to do equity where it appears upon the face of the bill that such offer is necessary destroys the equity in the bill. Penny v. Odum, 260 Ala. 563, 71 So.2d 881; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Coburn v. Coke, 193 Ala. 364, 69 So. 574. Ramon L. Farnell, Montgomery, for appellee.
A bill for accounting implies that there are items on both sides, and must contain an offer to do equity. Hamilton v. Terry Furniture Loan Co., 206 Ala. 622, 91 So. 489; Young v. Dean, 253 Ala. 211, 44 So.2d 12; Shamblee v. Wilson, 233 Ala. 164, 165, 170 So. 769. It was error to overrule demurrer to that aspect of the bill seeking a lien. Young Young, Anniston, for appellee.
Webster v. Talley, 251 Ala. 336, 37 So.2d 190; Matthews v. Matthews, 247 Ala. 472, 25 So.2d 529; Box v. Box, 253 Ala. 297, 45 So.2d 157; Hudson v. Newell, 5 Cir., 172 F.2d 848; Sadler v. Public National Bank, etc., supra; Rogers Nat'l Bank v. Pewitt, Tex.Civ.App., 231 S.W.2d 487; Matthews v. Land Owners Oil Ass'n, Tex.Civ.App., 204 S.W.2d 647; Belt v. Texas Co., Tex.Civ.App., 175 S.W.2d 622; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Royal Petroleum Corp. v. McCallum, 134 Tex. 453, 135 S.W.2d 958. He who seeks equity must do equity. 2 Pomeroy, Eq.Jur. (5th Ed.) 79, ยง 393b; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Harris v. Nichols, 223 Ala. 58, 134 So. 798. Albert J. Tully and Holberg, Tully Aldridge, all of Mobile, for appellees.
It has been held by this court that, in order to maintain such a bill, the complainant must allege that at the time of filing same he was in the peaceable possession, actual or constructive, of the property, the title to which complainant seeks to have quieted. Donohoo v. Smith, supra; Screws v. Heard, 217 Ala. 14, 114 So. 360; Wood v. Curry, 243 Ala. 136, 8 So.2d 822; Petcher v. Rounsaville, 267 Ala. 237, 101 So.2d 324; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769. The failure of the bill in so far as it seeks to quiet title to allege peaceable possession in complainant was a defect going to the substance of the bill and could be raised by general demurrer.
Under the authorities cited above, Burgin v. Sugg, supra, and others, where a bill of complaint does not contain averment of the facts showing how a mistake was made, or the fraud committed by the offending party, the bill is subject to appropriate demurrer. Kilgore v. Redmill, 121 Ala. 485, 25 So. 766; Amberson v. Patterson, 227 Ala. 397, 150 So. 353; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Atlas Assurance Co., Limited, of London, England v. Byrne, 235 Ala. 281, 178 So. 451; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; McGregor v. McGregor, 254 Ala. 378, 48 So.2d 312. In so far as Winslett v. Rice holds contrary to the rule that a bill for reformation is subject to demurrer where the bill fails to aver with sufficient particularity the facts showing the mistake or fraud relied on for relief, Winslett v. Rice is overruled.
Even though complainants prayed for the establishment of a resulting trust instead of a constructive trust, sufficient facts are alleged to show a constructive trust and the general prayer for relief was sufficient to justify the overruling of the general demurrer. White v. Lehman, 210 Ala. 542, 98 So. 780; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Hutto v. Copeland, 265 Ala. 482, 92 So.2d 30. The theory of the bill is that Margaret Cox, a miserly old lady who distrusted banks, had hidden in her home at the time of her death a large amount of currency, some or all of which was stolen by Irene Hurley, a stenographer for the attorney representing the special administrator, while the attorney, the special administrator and the heirs of the decedent were searching Mrs. Cox's home in the hope of finding any such currency.
But the bill does not contain certain of the averments which are required in a statutory bill to quiet title. ยง 1110, Title 7, Code 1940. It fails to show peaceable possession in the complainants. Freeman v. Lewis, 251 Ala. 75, 36 So.2d 309; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Federal Land Bank of New Orleans v. Vinson, 246 Ala. 95, 18 So.2d 865, and cases cited. A statutory bill to quiet title should contain averments going to show that there is no suit pending to enforce or test validity of the title, claim or encumbrance.
Cross v. Maxwell, 263 Ala. 569, 83 So.2d 211. In a suit to cancel a deed for fraud a bill which does not offer to restore all money received by complainants as a condition to relief is defective. Rowland v. Hester, 206 Ala. 498, 90 So. 910; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769. A contemporaneous verbal contract cannot be used to engraft new and different conditions on a written contract. Johnson v. Delony, 241 Ala. 16, 1 So.2d 11; Ex parte South, 205 Ala. 31, 88 So. 221.
Appellant having admitted the unconstitutionality of the Act of 1955, and that the petition was subject to demurrer, cannot avoid the judgment dismissing the petition by appeal, but should have amended. Shamblee v. Wilson, 233 Ala. 164, 170 So. 769. The Act of 1951 is valid and constitutional.