This is an appeal by the plaintiff, cross-defendant, from a decree overruling his specific grounds of demurrer to a certain aspect or part of the cross bill.
Upon consideration of the cause in consultation, the members of the court were dissident to the view entertained by Mr. Justice BROWN, to whom the case was assigned, and are of the opinion that the decree of the lower court should be affirmed, rather than that the appeal should be dismissed, as expressed in the dissenting opinion.
The answer, by way of cross bill of the defendants, sought to set forth the matters on which the defendants relied for their claim of title to the lands by way of defense to the claim of the plaintiff. This was in accordance with the requirements of the statute, Code 1940, Title 7, § 1111, and was defensive of the case made by the original bill (Bell v. McLaughlin,183 Ala. 548, 62 So. 798) as well as seeking affirmative relief. The equity of the cross bill, seeking relief, was that the parties be adjudged to be joint owners and tenants in common of the lands involved and that they be sold for division of proceeds among them.
Stripped of prolixity, the claim of title of defendants sought to be set up in the answer and cross bill, in denial of the plaintiff's claim, was in substance (1) fraud in the procurement of the deed from Mrs. Freeman (the basis of the plaintiff's claim of title), of which the plaintiff and his title predecessor had knowledge or notice, thereby settling the validity of defendants' title to' the lands — which averments the court ruled inadequate as an allegation of fraud and therefore sustained the grounds specially *Page 338 assigned thereto in the demurrer — and (2) knowledge or notice of plaintiff and his prior titleholders of the true condition of the title to the property: viz., of the fact that said plaintiff and his predecessors in title only owned an undivided one-seventh interest in the property as tenant in common with the defendants.
The effect of sustaining the several grounds of demurrer specially directed to a certain part of a bill is to strike out that part, whereupon the plaintiff may amend to cure it or eliminate it or, if the bill still has equity, proceed without amendment on the remaining allegations. Sandlin v. Anders,210 Ala. 396, 98 So. 299; Abrams v. Abrams, 225 Ala. 622,144 So. 828; Bates v. Baumhauer, 239 Ala. 255, 194 So. 520; Pollak v. Stouts Mt. C. C. Co., 184 Ala. 331, 63 So. 531; 30 C.J.S., Equity, § 292b.
That is the status of the pleading in this case. The court sustained the specific grounds of demurrer assigned to the fraud aspect (1) of the cross bill and overruled the grounds leveled at the other aspect. The decree is therefore reviewable in so far as the appeal seeks to challenge the action of the trial court in overruling the grounds of demurrer specially attacking this other aspect (2) of said cross bill.
See also South North Ala. R. Co. v. Highland Ave. Belt R. Co., 104 Ala. 233, 16 So. 112, as modified in McDonald v. McDonald, 114 Ala. 630, 21 So. 534.
The principle of the cases noted in the dissenting opinion is, of course, well understood and has not been here departed from. They are just regarded as inapposite to the pleading under consideration.
On the merits of the appeal it is the court's view that the several grounds of demurrer attacking this latter mentioned phase of the answer and cross bill were properly overruled. The averments under this aspect were simply defensive of the case made by the original bill and set forth the defendants' claim of title to the property, employing such pleading as would introduce facts in aid of a complete determination of the matter presented for litigation by the original bill. Bell v. McLaughlin, supra.
Extensive argument is made that the grounds of demurrer specially attacking the bill on the ground of laches should be sustained. Other reasons aside, the argument is untenable, since the defect is not apparent from the averments and demurrer cannot take the point unless it affirmatively appears from the face of the bill that laches has precluded a recovery. Wragg v. City of Montgomery, 245 Ala. 362, 17 So. 2d 173; Pittman v. Pittman, 247 Ala. 458(6), 25 So. 2d 26.
The decree is affirmed.
Affirmed.
All the Justices concur, except BROWN, J., who dissents.