16 Ala. 130 | Ala. | 1849
This suit was commenced by original bill .filed in the Chancery Court of Mobile by James Paul, the defendant in error, against the plaintiffs in error, in which it is substantially avered that one George N. Owen, on the 6th of-May 1835, at a sale made by the trustees of a company, known
The bill further charges, that said Owen died in the fall of 1837, his widow, Louisa S. Owen, and ten infant children, who are named in the bill, surviving: That said children are his devisees and heirs at law, and the said Louisa is the sole administratrix of his estate, all of whom reside in the county of Mobile: That complainant has caEed on said Louisa, to renew said deed, but she insisted she had no power to bind the infant children, and refused to do any thing in the matter for the relief of the complainant.
The bill prays that said Louisa and the children- be made parties defendant: That she discover the books and papers of the decedent, evidencing the transaction, and concludes with the prayer, that the court decree a new deed to be executed to the complainant, securing to him such rights as were secured to him by the said deed above described, or that such decree be made as shall divest the defendants of all title, and bar them, and vest the same in complainant and these claiming under his conveyance, and that his title may be quieted, &c., and for general relief.
To this bill is appended the usual affidavit of the execution of the deed by Owen, its loss, and that it has never been cancelled, released, &c., by complainant.
The widow answered the bill, admitting title in her hus
The chancellor decided that the complainant was entitled to the relief he prayed by his bill, and after decreeing that the proof fully established the sale and execution of the title deed by said Owen in fee simple with covenant of warranty as to title, further decreed that said Paul was entitled to all the rights which said deed did convey to him, and that he be invested with all rights and title which said deed did convey to him, and the heirs and legal representative be bound to warrant the title, as if complainant still had said deed, “ and that the complainant be in all things protected by this decree as if said deed were not lost,” &c.
F. L. Owen, the brother of the deceased, states that while said George W. Owen was Colleeter of the Port of Mobile, witness was his deputy, and saw said complainant and Paul
Jesse Carter proves, that while Primrose held possession of the lots, he hired carts and purchased dirt from the said George W. Owen to fill up the lots. William D. Primrose understood both from Paul and George W. Owen, that payment had been made in full, for the purchase, but is unable to designate the lots. He also was informed by said Owen that he had made a deed for some lots to Paul, but the character of the deed, or1 the description of the lots he is unable to give, nor does he know that the widow ever signed the deed or relinquished dower — believes Owen put Paul in possession; frequently saw said Owen present when the lots were being improved by Primrose, and never heard him claim title to the same. John G. Aiken proves that Owen informed him, that Paul had paid him $7000 for the lots, and witness had the information from the same source, that Paul derived title from Owen. Abner S. Lipscomb proves, that Owen was a large purchaser of town lots in Mobile, at a sale made by the Orange Grove Company. He remembers that complainant purchased a lot of ground from George W. Owen, in the year 1836, and paid down half the purchase money and gave his note for the remainder at three or six months. That Owen afterwards told the witness, that he had received the whole of the purchase money, and that Paul had discounted his own note. He also states as follows, “ I believe that I saw titles pass at the same time of the purchase — a fee simple title with the usual warranties. I afterwards saw Paul in possession of the lots.” Witness recollects the payment the more distinctly from the fact, that Owen afterwards frequently remarked to him, he felt under obligations to him for procuring him so punctual a purchaser.
This is all the testimony which is material in the cause, and
According to the allegations of the bill, the deed and acknowledgment in this case were made before the passage of the act of 1839, authorising femes covert to bar their right of dower by joining with their husbands in the execution of conveyances, in the presence of two or more credible witnesses, or upon acknowledging the same before some person author-ised by law to take the acknowledgment of deeds. The certificate of acknowledgment must then conform to the law as it previously existed, and must have been made upon a private examination, separate and apart from her husband. Clay’s Dig. 155, § 27. The substantial requirements of this statute must
The bill shows that a deed,.such as the parties agreed upon, was executed by Owen, and delivered to the complainant; jurisdiction cannot be therefore entertained of it, upon the ground of specific performance. The contract, according to the plaintiff’s own showing, has already been specifically executed, and the aid of the court is invoked to supply the loss of the evidence of that execution. The complainant under this bill cannot have relief predicated upon the ground that no such deed was made. The proof which entitles the complainant to relief must be such proof as is consistent with and sustains the allegations of the bill.
Decree reversed, and remanded.