Beorge Bieler's Sons v. Dreher, 129 Ala. 384

129 Ala. 384 | Ala. | 1900

DOWDELL, J.

The bill in this case was filed by Adam Dreher, the appellee, against Bopliia Brockmeier and appellants Bieler’s Bous.' The purpose of the bill was to correct and reform a certain deed, executed by Bopliia Brockmeier to appellee, Dreher, on the 24th day of June, 1895, and also to enjoin certain attachment proceedings and prevent a cloud upon the title to the lands described in the bill by reason of said attachment suit begun'in the circuit-court of Cullman county by appellants Bieler’s Bous against said B'ophia Brockmeier on the 21st day of Beptember, 1895, and in which said suit the writ of attachment had been levied upofi said lands. The respondent, Bopliia Brockmeier, made no defense against the bill, and a decree pro confesso was taken against her. Upon a final hearing of the cause upon pleading's and proof, a final decree was rendered in favor of the complainant granting the relief prayed for, and from this decree the respondents, Bieler’s Bons, prosecute the present appeal.

The bill being one. for the correction of a mistake in the description of the lands in the deed, undoubtedly nresents a case of equity jurisdiction. —Houston v. Fall, 86 Ala. 232,"and authorities there cited. It is not necessary that the complainant should hi in possession of the land in order to authorize the filing of such a bill. And tin* court having acquired jurisdiction to reform the deed, it will retain it and grant full relief. —Houston v. Fall, supra; Reese v. Kirke, 29 Ala. 406.

The debt, the foundation of the attachment suit by Bieler’s Sons against said Brockmeier, ivas a pre-ex-isting debt, evidenced by a note executed on the 26th day of November, 1894, long prior to the execution of the deed by Brockmeier to Drelier, which is sought to he corrected and reformed by this bill. The lien created by the writ of attachment, which was based upon this prior indebtedness and levied on the 21st day of September, 1895, was subordinate to the equities of Dreher in the land growing out of the contract of >sale of said land by Brockmeier to Dreher. Bieler’s tíons, as creditors of Brockmeier, can claim nothing as against Dreher by reason of the levy of their said attachment, which was subsequent to the contract of sale of the land by Brock-meier to Dreher. They parted with nothing on the faith of the land, and could levy upon only such interest as Brockmeier might have in the land, and do not fall within the class of subsequent purchasers and incumbrancers that are protected against latent equities.—Banks v. Long, 79 Ala. 319; Boyd v. Beck, 29 Ala. 713.

The bill avers that Mrs. Sophia Brockmeier was a married woman, and also avers that prior to and at the time of the making of the deed of June 24th, 1895, her husband had abandoned hen-. This being true, as shown by both the pleading and the evidence, it was not necessary to a valid (execution of the deed that her husband should join in the conveyance with her. — '(’ode of 1896, § 2528.

The respondents, Bieler’s Sons, by way of cross-bill, alleged fraud in the transaction between the complainant Dreher and Mis. Brockmeier in the sale and conveyance of the land, that the same was had and done for the purpose of hindering, delaying and 'defrauding Mrs. Brockmeier’-s creditors. The evidence, however, fails to support the avenuent and charge of fraud, and the chancellor so found upon the facts. The chancellor having decreed a reformation and correction of the deed, there was no error in his decree in granting further relief, as prayed in the bill, for p the prevention of a cloud upon the title by reason of the attachment proceedings and in enjoining said attachment suit.—Ala. Fire Ins. Co. v. Petheay, 24 Ala. 544; Burt v. Cassety, 12 Ala. 734; Lyon v. Hunt, 11 Ala. 295; Anderson v. Hooks, 9 Ala. 704.

The decree of the chancellor on the facts is based upon a consideration of legal evidence only, and as we find that there is sufficient legal evidence to support his finding we detan it unnecessary to consider the assignments relating to the evidence.

We find no reversible error in the decree. It is, therefore, affirmed.