18 Ala. 682 | Ala. | 1851
As the deed was written, it conveyed the property to the complainant, during her natural life, and after-wards to her heirs, without any exclusion of her husband. His marital rights, therefore, attached.
But it is fully and strongly stated in the bill that her father, the grantor, intended to exclude the husband wholly; that he took unusual trouble about the preparation of the deed with that view, and that from the time of its execution, he and the complainant rested satisfied that such was its effect, until after his death, the complainant was disturbed in the enjoyment of her property, and upon inquiry, ascertained that her separate rights were not legally secured by the deed, as it vims drawn. The bill has two objects — to reform the deed, and to be relieved against the defendant Brown. As to the first of these objects, and it extends to all the property that was conveyed, it can only be attained when the evidence is clear and satisfactory. The answer in this case merely puts the complainant upon proof of her case, as it does not, upon any personal knowledge of the defendant, deny the intentions of the grantor, or his mistake as to the effect of the deed which he executed. To our minds,
We are entirely satisfied from the bill, answers and evidence, that the parties intended by the deed to settle a life estate upon the complainant, free from the engagements or control of her-husband, and not liable to his creditors, and that, in this respect, it was drawn and executed under a mistake, which was not ascertained, until after Brown disturbed the complainant in the enjoyment of the property.
In the next place, besides reforming the deed as to all the property, she prays particular relief against Brown. He had executions against her husband, and caused them to be levied on the slave conveyed by the deed, and the slave was sold and he became the purchaser, and has bad the possession and serví-, ces of the slave ever since. The fact that he caused the levy to be made, and purchased with full notice of her claim, is very clear. He admits, as already mentioned, that there were rumors of her separate right to the property. This induced him to examine the record, or the deed, as stated in his answ-er, but even this he does not prove. Also, that in consequence of the rumors he had to indemnify the sheriff. Besides, there are omissions in his answer which, as settled in this State, have the effect ,of admissions, as they relate to matters within his know!
The decree is, therefore, reversed and the cause remanded, to the end that an account may be taken and a decree finally rendered in conformity with this opinion, and if the personal representatives and heirs of the grantor are necessary parties— a question which, at this time, is not material, and we do not decide it, as it has not been argued, — they can be made parties its «he court below.