[Worthington et al. v. Miller.] was then about fourteen years old; that the mother, as trustee, was charged with the management and control of this property for W. H. Worthington, until he should arrive at twenty-one years of age, or manifest such capacity as would render it safe to turn it over to him sooner, and that she executed a deed to him on August 10th, 1894, he then being just twenty-three years old; that the pretended debt, if created at all, was while this relation of trustee and cestui que trust existed, and while she was charged as trustee with the duty of saving and preserving it for him; that during all this time the mother was in receipt of all rents, issues and profits of the property, which rents and profits were large, the amount of which is unknown to complainant, and the account sued on shows not one dollar of credit for any receipt or income." The bill further avers that the property thus acquired by Mrs. Worthington was of value greatly in excess of the amount bid by her at the sheriff's sale, and largely in excess of the entire sum claimed by her; that said W. H. Worthington was not in law and in fact indebted to his mother, but that the claim was pretended and fictitious, and was devised as a mode and scheme by which W. II. Worthington could place his property beyond the reach of his creditors, he being then largely in debt, and could place it in the name of his mother, to hold for his use and benefit. The prayer of the bill is that the pretended judgment of Mrs. C. Worthington be declared inoperative, so far as it affects the judgment obtained by Rosenstihl Bros., and that the sale and deed made by the sheriff to her be declared inoperative, and of no force, so far as the same affects the title of complainant or the balance due on her judgment. There was also a prayer for general relief. BOWMAN, HARSH & BEDDOW and F. D. NABORS, for appellant. The bill does not show that complainant is in possession, and is a bill to remove a cloud from a title. That this cannot ordinarily be done will, perhaps, be conceded. We, however, cite the following au [Worthington et al. v. Miller.] thorities, which are conclusive on the subject: Teagle v. Martin, 87 Ala. 500; Plant et al. v. Barclay, 56 Ala. 561; 7 Am. & Eng. Ency. Law, § f, p. 159; Goodbar, White & Co. v. Daniel, 88 Ala. 583; Stokes v. Jones, 21 Ala. 735; Betts v. Nichols et al., 84 Ala. 278; Bergan v. Jeffries, 80 Ala. 349; Lehman, Durr & Co. v. Shook, 69 Ala. 493. This court will not entertain a bill and lend its active aid to complainant to make her the absolute owner of over seven thousand dollars' worth of property, taking that much away from others, on a purchase price of one hundred dollars at execution sale under a judgment for two hundred and fifty dollars, she owning the judgment, unless she would offer to do equity by offering to cancel her deed, provided her judgment with interest be paid. The authorities last above cited seem to us to contain this principle, though not applied directly as it would have have to be applied in the case at bar. We find the following principle stated, viz.: While gross inadequacy of price might not enable a court to declare the title to land void, it will yet restrain them from lending their aid to remove cloud from such title.--Huntington v. Allen, 44 Miss. 654; Burt v. Collins, 39 Fed. Rep. 538. It is said that to entitle a party to this relief it must appear that the contract was fair, just and reasonable, and founded upon an adequate consideration. Thus a court of chancery will not use its powers to complete a speculation which is already too fortunate to obtain its favorable regard.—DeGrann v. Mecham, 48 N. J. Ep., 224; Smith v. Vreeland, 1 C. E. Green 204 (16 N. J. Eq.); Dunlap v. Kelsey, 5 Cal. 181; Orton v. Smith, 18 How. (U. S.) 263; 1 Story Equity Jur., § 64e; Reed v. Tyler, 56 Ill. 288; Grider v. Am. Freehold Land Mort. Co., 99 Ala. 281; Watts v. Bonner, 6 So. Rep. 187 (Miss.). GEORGE A. EVANS, contra.- -Where a life estate is outstanding, the remaindermen cannot sue in ejectment to try validity of a deed purporting to convey the entire estate, but to remove such a cloud may file a bill in equity. Woodstock Iron Co. v. Fullenwider, 87 Ala. 586; Lansden v. Bone, 104 Ala. 448. [Worthington et al. v. Miller.] Having jurisdiction as to part the court will have jurisdiction as to all.—Shipman v. Furniss, 69 Ala. 562; Price v. Carney, 75 Ala. 554. To a bill to set aside a fraudulent conveyance the fraudulent grantor, if not a necessary party, is a proper party. Handley v. Heflin, 84 Ala. 600; Coffey v. Norwood, 81 Ala. 515; Pharis v. Leachman, 20 Ala. 662. A judgment creditor has the election either to file a bill to set aside a fraudulent conveyance before sale, or to proceed to sell and then test the validity of the conveyance.-Betts v. Nichols, 84 Ala. 278; Ladd v. Smith. 107 Ala. 506; Gilliland v. Fenn, 90 Ala. 236. Inadequacy of price paid by complainant for the property is no ground for collateral attack and is no reason why she should not maintain her bill.-Howard v. Corey, 126 Ala. 283. DOWDELL, J.-The bill in this case was filed for the purpose of removing cloud from complainant's title. The general rule in such cases is, and one too well settled by the adjudications of this court to admit of question, that a party out of possession cannot maintain the bill.-Plant et al. v. Barclay, 56 Ala. 561; Smith v. Cockrell, 66 Ala. 64; Griggs v. Swindall, 67 Ala. 187; Pettus v. Glover, 68 Ala. 417; Betts v. Nichols, 84 Ala. 278; Teague v. Martin, 87 Ala. 500. There are, however, exceptions to this rule, one of which being that a bill filed by a remainderman pending the possession by the life tenant.-Lansden v. Bone, 99 Ala. 448; Woodstock Iron Co. v. Fullenwider, 87 Ala. 586-7. As to all of the land described in the bill, except the parcel designated as "lot 19 in block 99," the complainant has her remedy at law in an action of ejectment, or the corresponding statutory action in the nature of ejectment, and, therefore, the bill is without equity save as to lot 19 in block 99. The bill shows that the respondent Caroline Worthington is rightfully in possession of this particular lot as a life tenant, and the complainant's claim of title is that of a remainderman. The demurrer, however, which raises the question of complainant's remedy at law, is directed to the entire bill, [Worthington et al. v. Miller.] and for that reason was properly overruled, since the bill contained equity as to lot 19 in block 99. The complainant's title was acquired under a judicial sale, and cannot be collaterally assailed for inadequacy of price paid.-Howard v. Corey, 126 Ala. 283. The bill alleges that the deed of Mrs. Worthington, which constitutes the cloud on complainant's title, was obtained through fraud and collusion with her son, W. H. Worthington. It is charged that Mrs. Worthington on a pretended and fictitious claim against her son, W. H. Worthington, by collusion with the said W. H. for the purpose of defrauding his creditors and covering up his property, obtained a judgment against said W. H. and under execution on said judgment, had the property in question levied upon and sold, she becoming the purchaser and receiving a sheriff's deed at such sale. The charges are that the claim against her son was a pretended and fictitious one, and that in fact she paid no consideration for the property. If this be true, and these averments are taken as confessed on demurrer, she is in no position to complain of the smallness of the price bid and paid at an execution sale by a creditor against W. H. Worthington, made subsequent to her collusive judgment and execution sale. The value of the property was depreciated by her own conduct. There is nothing in the demurrer as to misjoinder of parties respondent. Analogous to a bill to set aside a fraudulent conveyance, under the allegations of collusion and fraud in the present bill whereby the alleged cloud was created, the collusive debtor occupies the position of the fraudulent grantor, and though not an essential party, is not an improper party defendant. Moreover, an improper joinder of W. H. Worthington as a co-defendant with Mrs. Worthington cannot be taken advantage of on demurrer by the latter. If he were improperly joined, he alone could raise the question. There is no appeal in the case by him; the appeal is taken in the name of Mrs. Worthington alone. The appeal is irregular in that it was not sued out in the name of both defendants, but as no point is made on this, we pass it over, since the irregularity is such a one as might have been cured by an amendment. [Worthington et al. v. Miller.] However, as W. H. Worthington did not join in the appeal, and the appeal not having been sued out by Mrs. Worthington in his behalf, he is not a party, and assignment of errors made by him cannot be considered. Where a bill sets forth facts which entitle the complainant to relief, it is no objection to the bill that it avers cumulative facts.-Noble v. Moses, 81 Ala. 548. The averments in the bill in relation to the trusteeship of Mrs. Worthington are to be taken in connection with other averments upon which complainant bases her claim to relief, and as the statement of additional facts which tend to support such other averments. The theory being, that as trustee, in carrying out the trust, no indebtedness could have arisen from the cestui que trust to the trustee during the period of the trust, that being the time alleged in the bill when it is claimed that the pretended indebtedness from W. H. Worthington arose, unless there was a breach of the trust. The bill seeks no relief on account of any breach of the trust. There is no merit in the contention that the complainant should be required to redeem, for the reason, if for no other, that the bill avers that the defendant Caroline Worthington paid nothing for the land. If her claim was fictitious and pretended as alleged, she would be entitled to nothing from a redemptioner. A redemption would necessarily have to proceed upon the supposition of the validity of her judgment against W. H. Worthington. Nor is there any merit in the contention that the complainant does not offer to do equity, by offering to accept the amount of her judgment. This judgment had already been satisfied to the extent of the amount bid by the judgment creditor at the execution sale under the judgment. By the execution sale whatever title the defendant Wm. H. Worthington had in the property passed by the sheriff's deed to the pur chaser. This title, the bill shows, the complainant acquired under bankrupt proceedings against Rosenstihl, who obtained the judgment against Worthington, and was the purchaser under the execution on the judgment, receiving the sheriff's deed. We find no error in the decree overruling the demurrers, and the decree will be affirmed. |