Jones v. McNealy, 139 Ala. 379

139 Ala. 379 | Ala. | 1903

TYSON, J.

The bill as amended to .which the demurrer was sustained, seeks to have a certain deed executed by Mrs. Smith to her daughter, Mrs. McNealy, reformed and cancelled as to a certain portion of the lot described in it and purported to be conveyed by it, aim to correct the description in the mortgage now held by complainant and to foreclose it, and also to enjoin certain actions of ejectment instituted by Mrs. McNealy, etc., etc.

It. proceeds, in so far as the reformation and cancellation of the deed under which Mrs. McNealy claims title to the whole lot upon' two theories: First, upon the ground of a mutual mistake by the parties to it; and second, in the event there was no mistake upon the ground of an estoppel in pais predicated upon the conduct of Mrs. McNealy. The right of the complainant to the relief she seeks is based upon two conveyances, one a mortgage, referred to above, acquired by transfer and the other a deed, both of which were executed by Mrs. Smith, conveying a certain portion of the lot covered by the deed previously executed by Mrs. Smith to her daughter.

A demurrer comprising eleven assignments was interposed to the bill as amended. The chancellor, it appears, only regarded the. first two grounds meritorious. These two practically raise the same question. They go to the entire bill and challenge the right of the complainant to lelief upon the ground that it is not shown that she had no notice or knowledge of the alleged mistake in the deed from Mrs. Smith to her daughter. It is true the bill does not allege her want of notice or knowledge of the fact. And construing its averments most strongly against the complainant, it must be taken that she knew of the mistake when she acquired her rights under the conveyances she now holds. Knowing this, she also knew that Mrs. Smith had the right to have her deed to her daughter corrected. — Larkins v. Biddle, 21 Ala. 252; 65 Am. St. Reports, 514, note. Having acquired Mrs. Smith’s right to the part of the lot in controversy, the complainant takes her place and is entitled to enforce that right in the matter of the misdescription. This' point was raised by the demurrer to the bill in the case of Harris v. Ivey, 114 Ala. 363, ivhich was filed by a purchaser, as here, to have corrected a misdescription of the lands contained in a deed, previously executed by his grantor to another. It was ruled to be without merit. These grounds of demurrer were improperly sustained. If they had been interposed solely to that phase of the bill which relies upon the estoppel m 'pais, we are not prepared to sa3r whether they are well taken or not. That question is not presented, and we, therefore, decline to express an opinion on it. Nor for that matter are any of the other grounds of demurrer well taken as we shall proceed to show.

The deed from Sirs. Smith to Mrs. McNealy; her daughter, sought to be corrected, expresses the consideration of five dollars paid and for love and affection, and contains covenant of warranty. Whether it is one of bargain and sale or of gift is immaterial, since if it be the one or the other, Mrs. Smith would have had the right to have it reformed. — Larkins v. Biddle, supra; Weathers v. Hill, 92 Ala. 492. The-third ground of demurrer is, therefore, not well taken.

The title asserted by complainant being equitable, it is ‘ not necessary for the purposes of this .bill, that she should be in possession, since she has no adequate remedy at law. — Echols v. Hubbard, 90 Ala. 309, and authorities there cited. Nor can laches be imputed to her on the facts alleged. Complainant has been in the possession of that portion of the lot to which she has a deed ever since its execution, and the mortgagor, Mrs. Smith, also Mrs. McNealy’s grantor, has all along been in the undisturbed possession of the other portion of it. This bill was filed promptly after Mrs. McNealy made known her intention to disturb complainant’s possession. Nor is it necessary that the bill should allege when complainant discovered the mistake in the description; or that a request or demand was made by her on the respondent, Mrs. McNealy, to correct the mistake before the bill was filed. Mrs. McNealy’s attitude in the matter of instituting the suits in ejectment excluded all expectation that had a recpiest or demand been made upon her, that she would have complied with it. — Weathers v. Hill, supra; Harrold v. Weaver, 72 Ala. 373.

The averments of the bill when taken in connection with the stipulations contained in the mortgage sufficiently show a maturity of the débt secured by it and a default on the part of the mortgagor that entitles complainant to have it foreclosed. What we have said disposes of those assignments of demurrer interposed by both respondents adversely to each of them.

The remaining grounds, asserted separately by each of the respondents, attack the bill for multifariousness, but are confined to the first phase of the bill which seek's relief on account of the; mistake in the deed executed by Mrs. Smith to her co-respondent, Mrs. McNealy.

Complainant claims an equitable title to all the lands in controversy from the same grantor, Mrs. Smith, and also asserts that all the lands claimed by her, whether acquired by deed or mortgage, was by mistake included in the deed from Mrs. Smith to Mrs. McNealy.

The bill properly presents a case for the exercise of the court’s jurisdiction to reform and correct the deed, and the court will grant full relief to the end of foreclosing the mortgage, if the complainant establishes by evidence her right to a correction of the misdescription. — Bieler v. Dreher, 129 Ala. 384; McGehee v. Lehman, Durr & Co., 65 Ala. 319; These grounds of demurrer are, therefore, not well taken.

It follows that the decree appealed from must be reversed, and a decree will be here rendered overriding the demurrer.

Reversed and rendered.