
    Tillman v. Thomas.
    
      Bill in Equity by Heirs, to set aside Sede of Lands under Probate Decree on application of Administrator.
    
    1. Filing bill in double aspect. — A bill filed in a double aspect, seeking to set aside a sale of lands under a probate decree, on the ground (1) that the proceedings are void on their face, or (2) that they are void for fraud in their procurement, is demurrable; but the objection must be taken by demurrer specially assigned.
    2. Demurrer; adequate legal remedy. — A demurrer to a bill, on the ground that there is an adequate legal remedy, is properly overruled, when the legal remedy is adequate to only one of the two aspects in which the bill is filed.
    3. Sale of lands under probate decree; setting aside in equity on ground of fraud. — A sale of lands under a probate decree, on the petition of the administratrix of the deceased owner, will be set aside in equity at the instance of the heirs, on averment and proof that it was procured by fraudulent collusion between the purchaser and the administratrix, in payment of her individual debt to him.
    4. Same; sub-purchaser with notice. — A sub-purchaser from the original fraudulent purchaser, having knowledge of facts sufficient to put him on inquiry, is chargeable with notice of the fraud, and can not claim protection against the equity of the heirs.
    Appeal from the Chancery Court of Bussell.
    Heard before tbe Hon. John A. Foster.
    The bill in this case was filed on the 2d July, 1883, by Edward Thomas and John Thomas, children and heirs at law of John B. Thomas, deceased, against W. L. Tillman, B. B. Burts, Mrs. Bebecca P. Kennedy, and others; and sought to vacate and set aside a sale of certain lands, which had belonged to the decedent in his life-time, and were sold under a probate decree on the petition of the widow as administratrix. As the bill is copied in the transcript, L. D. Odom, who had married a daughter of the decedent, was joined as a complainant; but he was also made a defendant, and a decree pro confesso was entered against him; and it was alleged that his wife and only child were dead. John B. Thomas died in December, 1862, or January, 1863. Letters of administration on his estate were granted to his widow, Mrs. Bebecca P., who afterwards married W. L. Kennedy. She filed a petition in the Probate Court, in February, 1872, asking an order to sell the lands for the payment of debts. An order of sale was granted on 20th March, and the lands were sold tinder it on April 15tlr, 1872. W. L. Tillman became the purchaser at the sale, and was so reported to the court, by which the sale was confirmed; and he afterwards sold and conveyed a part of the land to Burts. The complainants sought to set aside the sale, to cancel the several conveyances, and to recover the possession of the land, on the ground that the sale was procured by fraudulent collusion between Mrs. Kennedy and her husband and said Tillman, to whom they were indebted; and on the further ground that the proceedings were void on their face as against the complainants.
    Separate answers were filed by Tillman and Burts, each insisting on the validity and conclusiveness of the probate decree; and each demurred to the bill, on the ground that the bill was barred by the statute of limitations, and that the complainants had an adequate remedy at law. Burts also claimed protection as a purchaser for valuable consideration without notice. The chancellor overruled the demurrer, and, on final hearing on pleadings and proof, rendered a decree for the complainants as prayed. Tillman and Burts appeal from this decree, and here assign it as error.
    Watts & Son, and J. B. Mitchell, for appellants,
    cited Watts v. Frazier, 80 Ala. 186; Lanford v. Dunklin, 71 Ala. 594; Farley v. Dunklin, 76 Ala. 530; Gordon v. Ross, 63 Ala. 366; Péttus v. McGlcmahan, 52 Ala. 60; Dugger v. Tayloe, 60 Ala. 519; Kellam v. Richards, 56 Ala. 240; Riggs v. Fuller, 54 Ala. 148; Strang v. Moog, 72 Ala. 465; Chardavoyne v. Lynch, 82 Ala. 376.
    Hooper & Waddell, contra.
    
   McCLELLAN, J.

This is a bill by heirs, seeking to set aside and vacate the proceedings of the Probate Court, under which lands belonging to the estate of their ancestor were sold by his personal representative. As amended, the bill is presented in two aspects. In one, it is sought to vacate the order of sale and confirmation, on the ground of fraud in their rendition. In the other, the same result is attempted to be reached, on the ground that the probate proceedings are void on their face. A cause, if proper objection be interposed, can not thus be presented to a court of equity in a double aspect, unless the complainant is entitled to the same relief on each phase of his allegations. That is not true in the case at bar. On the contrary, in that aspect in which the ground of relief is fraud, he would, if the averments are supported by the evidence, be entitled to a decree vacating the order of sale, and annulling all proceedings thereunder; while in that aspect in which the decree is alleged to be void on its face, he would be entitled to no relief in equity, but would be remitted to the law courts. Florence v. Paschal, 50 Ala. 28; Tyson v. Brown, 64 Ala. 244. If the latter allegation be not treated as merely redundant, it would seem that the bill presented two claims for relief, which ought not to have been joined. But the objection on that ground could only be taken by demurrer, and no demurrer going to this point was interposed. —Seals v. Robinson, 75 Ala. 363.

There was a general demurrer to the bill; as amended, on the ground that it disclosed that complainants had an adequate remedy at law. This objection was well taken to only one of the two aspects in which relief was prayed. Under the allegations that the proceedings sought to be vacated were void on their face, it was disclosed that an adequate remedy at law existed. But the complainants had no such remedy under their claim for relief on the ground of fraud. The rule is of general application, that where the bill sets forth two or more claims for relief in equity, and a general demurrer is filed by respondents, it should be overruled, and the relief granted, if any of the grounds upon which relief is sought are of equitable cognizance. —1 Dan. Ch. Pr. & Pl. 550; Dimmock v. Bixby, 20 Pick. 374; Morton v. Grenada Acad., 8 Sm. & M. 773. In Alabama, this principle has been applied to a case very like the present one. A bill was filed to have a deed can-celled as a cloud on title. The allegations disclosed one state of facts on which the remedy was in chancery, and another on which the remedy was at law. There was a demurrer to the whole bill, on the ground that the complainant had an adequate legal remedy. The opinion of this court was, that “the bill contains two distinct independent grounds on which the claim for relief is based; and that, if either ground is sufficient, its force is not impaired by the fact that it is joined cumulatively with another alleged ground, which, of itself, will not maintain the equity of the bill;” and it was accordingly held, that the demurrer was properly overruled.—Shipman v. Furniss, 69 Ala. 563.

"We concur with the chancellor’s finding on the evidence, tbat tbe order of tbe- Probate Court for tbe sale of tbe lands, described in the bill, and all tbe proceedings in tbat bebalf were procured to be made, bad and done, by and through tbe fraudulent collusion of tbe defendants (appellants here), Tillman, W. L. Kennedy and Rebecca P. Kennedy, tbe latter being tbe administratrix of tbe estate. We are satisfied, also, tbat tbe purchase-money of tbe land was never intended to be paid, and was not in fact paid; and tbat neither tbe estate, nor tbe complainants, ever received any benefit from tbe sale of said lands. On these facts, there can be no doubt of tbe power of tbe Chancery Court to declare tbe oi’ders of sale and confirmation void, and make all other decrees necessary to a complete rehabilitation of tbe title of tbe heirs, and to a full redress of tbe injuries they have suffered through tbe wrongful disseizin of their lands. It is one of tbe honorable boasts of our system of equity jurisprudence, tbat “tbe infection of fraud will be made to vitiate even tbe most solemn transactions, and adjudications of courts form no exception to tbe salutary rule. — Ereeman on Judgments, §449; Eslava v. Eslava, 50 Ala. 32; Lee v. Lee, 55 Ala. 590; Humphreys v. Burleson, 72 Ala. 1; Dunklin v. Wilson, 64 Ala. 162.

We also concur with tbe chancellor, tbat tbe evidence sufficiently shows tbe mala fules of tbe respondent Burt in bis purchase of tbe lands from Tillman. It is in proof tbat be knew tbe lands belonged to tbe estate of Thomas, and so were being sold in a fiduciary capacity by Mrs. Kennedy. He admits tbat tbe uncle of tbe minor heirs, who was also a surety on tbe administration bond, bad told him tbat whoever bought this land would buy a law-suit. He swears that be bad reason to believe tbat Tillman bought tbe land in satisfaction of a mortgage be held on Kennedy and wife, and tbat be knew Tillman bad furnished them supplies, and tbat Kennedy told him tbat tbe land was to be sold to reimburse him, Kennedy, moneys be bad paid out for tbe estate. While it may be tbat no one of these facts would have been sufficient to put him on inquiry, yet all of them combined are adequate to tbat end. Holding him, as all men must be held, to know tbe law, be bad notice tbat a trust estate was being sold to pay tbe individual indebtedness of tbe agent of tbe trustee to bis vendor, and tbat objection was being made to this transaction by a near relative of tbe infant cestuis que trust, and in their bebalf. This should have put him on in quiry.—Pendleton v. Fay, 2 Paige, 202; Stanghill v. Austey, 1 DeG., M. & G. 635.

Had the inquiry been prosecuted, the legal presumption is, that the real facts would have been ascertained. Had he gone, for instance, to Mrs. Kennedy, who was the trustee thus converting the trust estate, the law presumes that she would have told him the whole truth, as she seems to have done in this case, and he would have been fully apprised of the infirmity of his vendor’s title; and had he gone to the records of the Probate Oourt, which contained the evidence of one link in the title he was about to buy, he would have found, indeed, that the proceedings were not void on their face; but at the same time, and as a part of the same record, he would have found the most solemn asseverations, on the part of the heirs and the sureties of the administratrix, of fraud and crime in the administration of the trust property. Equity will hold him to a knowledge of all the facts that these inquiries would have disclosed to him; to a knowledge in this case of no more or no less than that the title of his vendor was the issue of fraud and collusion, and was void.

The decree of the chancellor is, therefore, affirmed.  