90 Ala. 470 | Ala. | 1890
The assignments of error, pressed in argument, relate to overruling the demurrers to the original and amended bills, and the motion to dismiss for want of equity.
Since the decision in Agricultural Bank v. Rice, 4 How. 225, the rule has been regarded as settled beyond question, that a person whose name does not appear, and who is not otherwise designated as a grantor, in the body of a deed or mortgage of lands, does not-become such by merely signing the instrument and affixing his seal, jointly with another, who is named and designated, and the conveyance does not operate to pass his estate or interest in the land.—Harrison v. Simons, 55 Ala. 510; Madden v. Floyd, 69 Ala. 221. Complainant is not named, nor is she otherwise designated, as a grantor in the mortgage, which she seeks .by the bill to have removed as a cloud on her title to an tmdivided half-interest in the land, the subject of this suit. Her husband, who owned the other half-interest, only is named and designated, and he alone conveys. Though complainant affixed her seal jointly with her husband, the mortgage not containing any words of conveyance, or evidencing an intention to convey her estate or interest, it is void as to her.—Blythe v. Dargin, 68 Ala. 370. It is true, that in an action of ejectment, whether brought by complainant against the mortgagee, or by the mortgagee founded on the mortgage, she would not be required to offer extrinsic evidence to show the inherent defect, in order to recover in the one case, or to defeat a recovery in the other. The mere exhibition of the mortgage would be its condemnation. It may be conceded, that, as a court of equity will not intervene to remove a deed, void on its face, as a cloud on the title, if this was the only purpose of the bill, it would be without equity. The record, however, does not disclose that any action was taken by the chancellor on the demurrer to the original bill; and it does not seem to be controverted that complainant is entitled to the relief granted, if the amendment to the bill was properly allowed; for, under the bill as amended, the cancellation oí the mortgage is sought as preliminary and
The statute of amendments to bills is broad and liberal, extending to striking out or adding new- parties, or to meet any state of evidence which will authorize relief. Before final decree, the amendment of the bill is a matter of right. The limitations upon its exercise are, that it shall not operate an entire change of parties, nor make a new case, nor work a radical departure from the cause of action stated in the original bill. New matter or new claim may be introduced, entitling complainant to additional or different relief from that specially prayed in the original bill, if it is not repugnant to its prayer and purpose. Whether the original bill contained equity — whether it presented a case of which the court could take cognizance, entitling complainant to relief, is not a material inquiry. If it did not, supplying or correcting its deficiencies was the proper ofiice of an amendment.—Prickett v. Sibert, 75 Ala. 315; Seals v. Pheiffer, 81 Ala. 518.
The original bill alleges, that complainant and her husband jointly purchased the land in November, 1883, and took a conveyance to themselves jointly. In November, 1884, they made a mortgage to Fite, Porter & Co., to secure a debt due by her husband. The mortgage, which is made an exhibit to the bill, shows it to be a conveyance by the husband alone. The mortgagees sold under a power of sale contained therein, and became the piirchaser through an agent; and took and remained in possession until they sold, or contracted to sell, to Hill, who went into possession. It further alleges, that an undivided half interest in the land is her statutory separate estate. Stripped of all redundant and superfluous allegations, the bill shows a tenancy in common between complainant and Fite, Porter & Go., or their vendee, each owning a moiety — all the facts necessary to authorize the court to decree a partition. Under the general prayer for relief, the complainant can obtain any relief appropriate to the case made by the bill, and not repugnant to the specific relief prayer, though in the special prayer she may have mistaken the relief to which she is entitled.—May v. Lewis, 22 Ala. 646.
The amendment- merely inserted an allegation, that- the land can not be equitably divided among the tenants in corirmon, and struck out the special prayer, that complainant “be placed in possession as tenant in common of her said interest- in said real estate,” inserting in lieu thereof a special prayer íbr a sale of the land for the purpose of partition. In no respect are any of the averments of the original bill changed. The case made
Affirmed.