Opinion
6 Div. 198.
February 10, 1921.
Appeal from Circuit Court, Pickens County; Robert I. Jones, Judge.
Patton Patton, of Livingston, for appellant.
The general demurrer that there is no equity in the bill is the proper method to get this equity. Section 3121, Code 1907; 17 Ala. App. 429, 85 So. 595. The averments of fraud are not sufficient. 201 Ala. 150, 77 So. 574; 13 Ala. 475; 56 Ala. 468; 72 Ala. 456; 75 Ala. 363; 102 Ala. 424, 15 So. 247; 202 Ala. 202, 79 So. 574. This is true as to the statement of coercion. Authorities supra. It is not charged that T. E. Stewart knew of the coercion, and hence it would not affect his rights acquired under the lease. 66 Ala. 600; 69 Ala. 92; 73 Ala. 387; 154 Ala. 117, 45 So. 231. The exhibit answers the charge, and contradicts the recital as to how complainant signed. 130 Ala. 297, 30 So. 347; 127 Ala. 103, 28 So. 654; 52 Ala. 167.
Jack M. Pratt, of Carrollton, and Edward De Graffenried, of Tuscaloosa, for appellee.
No brief reached the Reporter.
The bill in this case seeks to cancel or vacate two certain leases made by the complainant and her husband of certain lands owned by her, and which said lands had been previously conveyed to her by her said husband, J. E. Stewart.
The bill seems to seek relief upon three separate theories: First, because the lease was obtained from complainant through the coercion and duress of her husband; second, because the same was not binding on her, as she executed it simply as the wife of J. E. Stewart, and not in the capacity of owner of the land; and, third, because the said leases were procured through the fraud of her husband pursuant to an agreement or conspiracy between him and the respondent to deprive complainant of her possessory rights in and to said land.
The bill is faulty and subject to the respondent's demurrer as to the first theory, as it charges duress, and fails to set out the facts relied upon as constituting same. It seems settled that duress, when relied upon to avoid a contract, must not only be specially pleaded, but substantive facts should be set forth; legal conclusion will not suffice. 7 Enc. P. P. 347; Richardson v. Hittle, 31 Ind. 119. This averment is also defective in that it does not charge T. E. Stewart as being a party to said duress, or with a knowledge of same. Royal v. Goss, 154 Ala. 117, 45 So. 231. The bill does aver a knowledge and participation on the part of T. E. Stewart as to the fraud charged, but not as to duress.
While the bill charges T. E. Stewart with a responsibility for the fraudulent procurement of the leases by his brother J. E. Stewart, it does not set out the facts constituting the fraud. Little v. Sterne, 125 Ala. 609, 27 So. 972; Tyson v. Southern Cotton Oil Co., 181 Ala. 256, 61 So. 278.
The second theory of the bill presents a glaring repugnancy between the averment and the leases, which are made a part of the bill, as the latter shows that the complainant made the same as owner of the land, and not as a mere release of her marital rights in the same. Moreover, if the lease was not a valid conveyance of the land, she has a plain and adequate remedy at law, and does not need a cancellation in a court of equity.
The bill should, of course, offer to do equity by submitting to the order of the court and offering to reimburse the respondent for all sums that he may have paid out upon legal charges against the land. It does, in rather a vague and involved way, say something in the prayer about the opinion of the court as to "equity and good conscience," but does not specifically offer to do equity.
We think that the bill sufficiently charges T. E. Stewart with a knowledge that the land had been conveyed to the complainant before the execution of the leases, notwithstanding her deed had not then been recorded.
The trial court erred in overruling the grounds of demurrer presenting the points as above indicated, and a decree is here rendered sustaining same, and the cause is remanded.
Reversed, rendered, and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.