Jackson Lumber Co. v. Bass

61 So. 271 | Ala. | 1913

ANDERSON, J.

This bill seeks the reformation of a deed from Mary A. Parker to one Josiah Hart, which was not delivered to said Hart, so as to make one Jordan, to Avkom the land was sold and the said deed was delivered, the grantee therein, instead of the said Hart, or to have the contract of sale between the said Parker and Jordan specifically performed by the execution of a proper deed by the said Parker to Jordan. Construing the bill more strongly against the pleader on a demurrer thereto, the said Mary A. Parker was a married Avoman, both Avhen the deed Avas signed in favor of Hart and when it Avas delivered to Jordan, and she Avas not joined therein by her husband; the excuse being that he had abandoned her, or Avas not then in the state. Under the law then in force, section 2707 of the Code of 1876 (section 2373, Code of 1867), the property of the Avife could only be sold by the husband and Avife, and conveyed by them jointly, by instrument in writing, attested by íavo witnesses or acknowledged. The sales to Hart or Jordan not having been made as required by the then existing statute, but being by the AA'ife alone and not jointly with her husband, were A’oid. — Hammond v. Thompson, 56 Ala. 589; Alexander v. Saulsberry, 37 Ala. 375. The statutes then controlling made no provision for the conveyance of the wife’s property without being joined by the husband, notwithstanding he was out of the state or had abandoned her, unless she became a feme sole under the terms of article 4, pt. 2, c. 1, Code 1876, pp. 648-650.

Counsel for the appellant concedes that this condition will prevent a specific performance of the contract, but contends that it will not prevent a reformation of the Hart deed so as to make Jordan the grantee. Whether or not this was such a mistake as would authorize a reformation of the contract we need not decide, for it may be conceded that the same could be reformed, yet a reformation can work no benefit to this appellant. The deed befóle and after reformation would be the sole act of the wife, and, not being joined by her husband in the contract of sale or the deed to Hart or in the sale to Jordan, both transactions were void. Reformation will not be granted if it would be futile.— McCrary v. Williams, 127 Ala. 251, 28 South. 695. There can be no euqity in a bill which invokes the power of the chancery court to do a vain and useless thing. —Gardner v. Knight, 124 Ala. 273, 27 South. 298.

The decree of the chancery court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Gbaffenbied, JJ., concur.