134 So. 863 | Ala. | 1931
The amended cross-bill seeks the cancellation of the mortgage executed by Norris Holman upon the ground of his mental incapacity at the time of its execution. It avers that the mortgagee had knowledge or notice of such insanity at the time of the execution of the mortgage, and that complainant, the assignee thereof, had like knowledge or notice at the time of his purchase. These averments suffice to meet the assignments of demurrer 2, 3, 4, and 5. Street v. Treadwell,
Assignments 6 and 7 are refuted by the express averments of the bill, and assignment I is the general ground of a want of equity. The question of the sufficiency of bills of this character since the passage of the act of 1901 (Acts 1900-01, p. 1943, § 6822, Code 1923) was considered in Thomas v. Holden,
Appellee argues upon the assumption the cross-bill shows the receipt and retention of a valuable consideration without an offer to restore. But the cross-bill contains no averments as to the consideration, and whether subject to demurrer for such failure we need not stop to inquire, as no assignment of demurrer takes the point. The question of restoration is therefore not here presented. As said in Sumners v. Jordan,
Though we express no opinion upon the matter, we may properly suggest the following authorities for consideration upon the question argued in brief, but not presented by the assignments of demurrer: 32 C. J. 748; Martin v. Cameron,
It results as our conclusion the cross-bill was not subject to any of the assignments of demurrer interposed thereto, and that the decree sustaining the demurrer was laid in error and must be reversed.
Reversed and remanded.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.
