Amberson v. Patterson
| Decision Date | 12 October 1933 |
| Docket Number | 7 Div. 199. |
| Citation | 227 Ala. 397,150 So. 353 |
| Parties | AMBERSON et al. v. PATTERSON et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Suit in ejectment by Myrtle Patterson and others against James Amberson and others, transferred to equity docket and bill filed by defendants seeking reformation and foreclosure of mortgage. From a decree for plaintiffs in ejectment and dismissing the bill, defendants appeal.
Affirmed.
Merrill Jones, Whiteside & Allen, of Anniston, for appellants.
Motley & Motley, of Gadsden, for appellees.
The suit was originally for recovery of a tract of land described. There was demand by defendants for a jury trial and interrogatories to plaintiff calling for abstract and source of title, and answer thereto.
Thereupon there was a petition to transfer the case to the equity side of the court, and order of and due transfer, for that an equitable right was presented for decision that could not "be disposed of in the law side of the court." Section 6490, Code.
The original bill filed in equity by the defendants, James Amberson et al., asserted that respondent (appellant) James Amberson is in possession of the lands under a warranty deed of date of September 10, 1930, made by P. W. and J. E Roberts, and duly recorded; that he is claiming title and possession through his said grantors; that Amberson alone claims the lands and the other defendants are merely his tenants.
The complainants are the heirs at law of B. W. and R. S. Goins who are deceased, claiming title and right of possession by reason of descent and distribution from the said Goinses that Amberson claims the title and possession by reason of two mortgages given by the said Goinses to the Robertses. It is averred that in making these mortgages "a mistake in the description of the lands sought to be mortgaged" was made, and the lands were incorrectly described. The mortgages are made exhibits to the bill with usual leave of reference.
It is averred that it was the full intent and purpose of B. W. Goins and wife "to mortgage their home place," and that said mortgages were properly acknowledged before a lawful officer; that said grantors recognized the validity of said mortgages, removed from the lands and surrendered possession to the Robertses, the mortgagees; that none of the indebtedness was ever paid by the mortgagors "nor any of their heirs nor any one whatsoever."
A correct description is set out to the land, and it is further averred that the mistake "was unintentional and does not in any manner whatsoever render said mortgages invalid, and they seek in this case to full and complete equity," and pray for reformation and correction of said mortgages, the ascertainment of the indebtedness due under the mortgages, together with all interest and lawful charges, and the direction of a sale of the lands under the mortgages and the making of proper deeds to the purchaser.
The answer admits that Myrtle Patterson et al. claim title and right of possession through their ancestors, B. W. Goins and wife, but complainants deny that their father and mother ever made any mortgages to the said Robertses to the lands; deny that it was the "full intent and purpose of the said B. W. Goins and wife to mortgage the land set forth in the bill;" deny that any mortgage was ever given, that the parties "refused to give any mortgage on the same"-the lands in question-"their home place"; deny that they acknowledged the same before "any lawful officer"; deny that B. W. Goins and wife during their lifetime recognized the validity of said mortgages, or that they removed therefrom or surrendered possession to the Robertses. The existence of the mortgages is denied, and likewise "that they did not make any contention whatsoever other than the fact that said mortgages were on the land in controversy."
Under section 6565 of the Code, in equity cases it is unnecessary that incompetent testimony be objected to, and on the consideration of an equity case the court shall consider only such testimony as is relevant, material, and competent, and shall exclude and not consider any testimony which is irrelevant, immaterial, or incompetent, whether objection shall have been made thereto or not, and on appeal this court shall "consider only the testimony which is relevant, material and competent," and it is not required that either court point out or indicate what testimony should be excluded or not considered. I...
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Redwine v. Jackson, 8 Div. 425
...the practice and procedure of trial courts nor appellant courts as established by our decisions in this state. In Amberson v. Patterson, 227 Ala. 397, 398, 150 So. 353, 354, the court in applying the statute speaking by Mr. Justice Thomas observed: '* * * If a party to the suit brings out o......
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Springdale Gayfer's Store Co. v. D. H. Holmes Co., 1 Div. 259
...by the offending party, the bill is subject to appropriate demurrer. Kilgore v. Redmill, 121 Ala. 485, 25 So. 766; Amberson v. Patterson, 227 Ala. 397, 150 So. 353; Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Atlas Assurance Co., Limited, of London, England v. Byrne, 235 Ala. 281, 178 So......
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Ex parte Metropolitan Life Ins. Co.
...the rule, as noted by appellants' counsel, requiring great particularity of averment in bills of this character, Amberson v. Patterson, 227 Ala. 397, 150 So. 353, and cases cited; but our cases are to the effect that the rule does not call for a strained and unreasonable construction of the......
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Clipper v. Gordon
...the rule, as noted by appellants' counsel, requiring great particularity of averment in bills of this character, Amberson et al. v. Patterson et al., 227 Ala. 397, 150 So. 353, and cases cited; but our cases are to the effect that the rule does not call for a strained and unreasonable const......