16 Ala. 600 | Ala. | 1849
The answer of Reynolds is responsive to the bill. It denies that Smith has any equitable interest in the lands to which the respondent has the legal title. Títere is no proof to show the interest of Smith, and consequently the bill was properly dismissed as to him. "We also think the bill was properly dismissed as to Burgess, His answer shows that he purchased the equitable interest of Smith in the town lots and one half section of land before the bill was filed. The complainants by their interrogatories call on him to state the consideration he paid to Smith, and he states that he paid eight hundred dollars for the town lots and five hundred dollars for the half section. The answer of Burgess being responsive to the interrogatories that the complainants required him to answer, becomes evidence in the cause, and the plain
' But the court erred in dismissing the bill as to Smith and Stamps, who did not answer, and against whom a decree pro confesso was taken. The allegations of the bib as to them were confessed, and the complainants are entitled to such a decree against.them as the bill will authorise to be rendered, consistent with the rights of the other defendants as to whom it was properly dismissed.
The court also erred in dismissing the bill as against Fos-cue. It appears that Bradford, Stamps & Shelton were engaged in buying Indian lands : Bradford furnished the money, and Shelton and Stamps made the purchases. The agreement between them and Bradford was, that Shelton and Stamps should each receive one fourth of the net profits, after the purchase money was refunded to Bradford: Smith purchased from Shelton his interest, and afterwards acquired the interest of Stamps. The transfer of Smith to Fosco® only conveys the interest of Stamps, and does not embrace the interest of Shelton. It is true, that Foscue in his answer says, that his purchase was intended to include all the interest that Smith had, both that which he had acquired from Shelton as well as the interest acquired from Stamps, and that there was a mistake in drawing the transfer in omitting to insert the interest acquired of Shelton. Although a court of equity upon clear proof of a mistake in drawing a deed, or other instrument, will correct it, we think this can only be done at the suit of him whose interest is affected by if, that is, the party alleging the mistake must become the actor, and seek a reformation of the deed according to the terms of the agreement
But it is very clear that the interest of Smith, whatever it may be, to the north half of section 19, township 24, range 18, should have been subjected by the decree to the complainant’s demand. The evidence of Bradford in connection with the exhibits attached to Foscue’s answer, shows that Smith had but an equitable interest in this land, the legal title being in Bradford. In the case of Elmore & Willis v. Harris, 13 Ala. 360, we held, that a defendant in execution who held only a bond for titles, had not ,such a title as could be sold under execution at law, notwithstanding he had paid the purchase money, and was in possession of the land. This decision is conclusive to show that Foscue acquired no title by his purchase at sheriff’s sale, and he does not pretend to claim title to this land in any other manner. As the interest of Smith in this half section, and the interest Smith purchased of Shelton in all the landsmlaimed by Foscue should have been subjected to the payment of the debt of the complainants, the decree as to Foscue must be reversed.
The legal title, so far as we are advised, to all the land in which Smith had an interest derived from Shelton, is still in Bradford. Bradford is therefore a necessary party to a bill seeking to subject that interest, and consequently the chancel
The decree so far as it dismisses the bill as to Reynolds and Burgess is affirmed, but it must be reversed as to Smith, Stamps, Foscue and Bradford, and the cause remanded for further proceedings as to them.