Treadwell v. Torbert , 122 Ala. 297 ( 1898 )

TYSON, J.

— Tlie bill in this case ivas filed by appellant to cancel a deed executed by her to the appellee on the 27 th of June, 1895, as a cloud upon her title to certain lands of which, it is averred, she is in the possession. The chancellor dismissed the bill for want of equity, and it is from this decree that this appeal is prosecuted. The facts averred may be fairly collated, notwithstanding they are not tersely and concisely stated, as follows: That the defendant on May 1, 1895, commenced a criminal prosecution against the husband of complainant for obtaining from him $800 under false pretenses, which was wholly unfounded and fraudulent, and for the purpose of procuring the execution of this deed; that befort and after her husband’s arrest the defendant represented to her that her husband had committed the said offense, and that he Avas liable to be imprisoned therefor in the penitentiary; and that it Avould be necessary for complainant in order to secure his release and avoid his conviction and sentence, to execute the deed which she here seeks to have cancelled; that the charge brought by defendant against her husband Avas false, malicious and “trumped up,” and that defendant knew it to be false, but resorted to it for the purpose of inducing complainant to execute the said deed; and that there Avas no other consideration for said deed.

.These facts must be taken as true on the motion to dismiss the bill for Avánt of equity, and, indeed, every averment of the bill, though defective, but capable of being cured by amendment, must Ik1 so taken and treated. They constitute a fraud upon complainant against which a court of equity will grant relief. It Avould be unconscionable, and would encourage a resort to dishonest artifices and practices to acquire property, to alloAV the defendant to retain the fruits of this transaction, obtained under the circumstances alleged in this bill.

The record contains no opinion of the chancellor, and we are Avitheut data, by whicli we could be informed, as to the considerations that influenced him in reaching the conclusion, that the bill contained no equity. Doubtless the contention Avas insisted upon before him by the defendant, that is here relied upon. It is, that the facts averred, show that the real consideration of the deed was the compounding of a felony. How defendant could he guilty of compounding a felony by taking or receiving the property conveyed by the deed to compound or conceal such felony or to abstain from any prosecution therefor, if complainant’s husband had committed no offense, we are unable to perceive. Had he been indicted for the compounding of a felony by receiving the deed from complainant, in consideration of his promise to conceal or to abstain from a prosecution of her husband, it Avould haAm been a perfect defense to have sIioavu. that complainant’s husband was not guilty of obtaining the money by false pretenses — that the charge and prosecution was unfounded and could not have been successfully maintained. It would be a non sequitur to hold that defendant Avould not be guilty of compounding a felony under the facts alleged in that bill, but that complainant should be denied the right to prosecute this suit because she shared in the guilt of an illegal and immoral transaction. It folloAvs that the case as now made by this bill is clearly distinguishable from Treadwell v. Torbert, 119 Ala. 279, and not Avithin the influence of the principles there declared.

The contention of appellee that the decree dismissing the bill should be affirmed, because it appears that more than three years have elapsed since the matters complained of arose and the filing of the bill, is untenable. Even if this doctrine had any application to this case, Ave would treat the bill as amended so as to relieve the complainant of the imputation of laches. But, it is distinctly averred that she is in the possession of the lands, and, for aught that appears, has never surrendered the possession to defendant under the deed, or recognized his claim or title to them. Staleness or laches is founded-upon acquiescence in the assertion of adverse rights and unreasonable delay on complainant’s part in not asserting her OAvn to the prejudice of the adverse party. — Pom. Eq. Jur., § 419; 12 Am. & Eng. Encyc. of LaAV, 533; 3 Brick. Dig., 366, § 463.

There are some amendable defects in the bill which can be cured, but they furnished no ground for its dismissal on the motion.

The decree must he reversed and the cause remanded.

Reversed and remanded.