Armour v. Lose

33 Ala. 317 | Ala. | 1858

STONE, J.—

Neither the bill in this case, nor the answer, sets up that the deed from Lose and wife to Armour, conveying tbe.entire lot, was in trust. Tbe bill alleges, that Armour, by mistake or fraud, procured the deed for the entire property, when it was the intention of Lose to convey only the undivided half. The answer denies this, and sets up a contract, by which Lose intended to convey, and did convey, the entire property in absolute right.

Under these circumstances, we consider the only question to be one of fact. Two witnesses and strong corroborating circumstances prove satisfactorily to our minds that Mr. Lose, the complainant, had a continuing interest in the lands in' controversy. The declarations of Mr. Armour, and the conduct of the parties, leave but little if any room to doubt the nature of that interest. It was an interest in the freehold. The countervailing testimony is not sufficient to overturn this conclusion. We feel authorized, then, to find that, either by fraud or mistake, and without the knowledge or consent of Lose, Armour procured the deed for the entire property, when it should have been only for an undivided half. This leads us to the same conclusions which the chancellor attained.

The decree of the chancellor is affirmed*.