Burnell v. Morris

• Decision Date: 26 April 1895
• Citation: 106 Ala. 349,18 So. 82
• Parties: BURNELL v. MORRIS.
• Court: Alabama Supreme Court

18 So. 82

106 Ala. 349

BURNELL v. MORRIS.

Supreme Court of Alabama

April 26, 1895

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Suit by William Morris against Ellen Burnell to reform a deed. Decree for complainant. Defendant appeals. Reversed.

Bowman & Harsh, for appellant.

Houghton & Collier, for appellee.

COLEMAN J.

Abel Burnell executed a mortgage upon a certain parcel of land, in which his wife, Ellen Burnell, joined, to William Morris to secure the payment of a debt due the mortgagee. After the death of Abel Burnell the mortgage was foreclosed by a power of sale, and at the sale Ellen Burnell became the purchaser. The mortgagee, William Morris, executed a deed to Ellen Burnell, the purchaser, with general covenants of warranty as to title. The purchaser, having surrendered possession to a superior title sued William Morris for a breach of the covenants of warranty in the deed in a court of law, and recovered a judgment against him. William Morris then filed the present bill, the purpose of which was to reform the deed of conveyance, so as to strike out the covenants of warranty and to make it a conveyance of only such title and interest as was vested in him by the mortgage, and to enjoin the enforcement of the judgment. At final hearing the chancery court granted the relief as prayed. The evidence of complainant shows that he employed an attorney to foreclose the mortgage for him, and to prepare a deed to the purchaser and that he signed the deed without reading it over, or having it read to him; that he supposed it contained a conveyance of his interest as mortgagee; that he did not know it contained covenants of general warranty, until long afterwards, when he was informed by one Shugart, who claimed the lot by a superior title. The attorney testified that the mistake was committed by him through inadvertence. The testimony for the respondent tends to show that, before the foreclosure, William Morris inquired of her if she wished to purchase the property; that she had no money; that the miners and some friends made up a fund for her; that she agreed with Morris, if he would make her a good and perfect title, that she would buy the property; that Morris afterwards returned and informed her that he had consulted a lawyer, and that he could make her a perfectly good title, and would do so, and with this understanding she agreed to purchase the property at the...