Caston v. McCord

• Decision Date: 05 June 1901
• Parties: CASTON ET AL. v. MCCORD.
• Court: Alabama Supreme Court

30 So. 431

130 Ala. 318

CASTON ET AL. v. MCCORD.

Supreme Court of Alabama

June 5, 1901

Appeal from chancery court, Marshall county; W. H. Simpson Chancellor.

Bill by Mary E. McCord against J. R. Caston and others for the foreclosure of a mortgage. From a decree overruling demurrers to the complaint, defendants appeal. Affirmed.

McClellan C.J., and Dowdell, J., dissenting.

It was averred in the bill that the complainant was the owner of a mortgage which was executed by the defendant J. R. Caston, in which he conveyed, in addition to personal property, the following described real estate: "That certain lot of land lying in the town of Albertville bounded on the north by the property of Mrs. H. E. McCord, on the west by the Polecat road, on the south by the lot of A. J. Rains, and on the east by Hamrick street, lying in section 15, township 9, range 4 east, in Marshall county, and containing one and a third (1 1/3) acres." A copy of this mortgage is attached to the bill, marked "Exhibit A," and it was averred in the bill that the land described in said mortgage is the same land as was described in the bill. It was then averred that subsequent to the execution of said mortgage, and after the same had been duly recorded in the probate office of Marshall county, the said J. R. Caston sold and conveyed a part of said property to the defendants Coleman and Upton on December 13, 1893, and that, subsequent to the execution and recording of said mortgage, the said Caston executed and delivered to the defendant Emmett a deed to a portion of the said land that the defendants W. T. and Hattie E. McCord were in possession of the property, claiming it as their own, at the time of the filing of the bill. The complaint further averred that there was a balance due upon said debt which the mortgage was given to secure, and that this balance had been reduced to judgment against said Caston. The prayer of the bill was that the mortgage might be foreclosed and said lands ordered sold for the payment of the indebtedness. There was also a prayer for general relief. In the mortgage, which was attached as Exhibit A, the property therein conveyed was described as follows: "One lot containing one and a third (1 1/3) acres of land lying south of W. T. McCord's lot in Albertville, Ala., in Sec. 15, T. 9, R. 4 east." The defendants demurred to the bill upon the following grounds: (1) The description of the land as contained in the bill is a variance and a departure from the description of the land set out in the mortgage attached thereto as an exhibit. (2) The description of the land in said bill, when properly considered together with the description in the mortgage, shows that said description in said mortgage is void because of uncertainty. (3) The description of the land as contained in the mortgage shows that the record of said mortgage was not a notice to any person of an incumbrance on the land mentioned and described in the bill. (4) That by reason of such uncertainty in the description the purchasers from Caston acquired the said land without notice of the equity of the complainant.

John A Lusk, for appellants.

O. D. Street, for appellee.

SHARPE J.

If it be judged alone by what appears on its face, the mortgage exhibited in the bill and sought to be foreclosed is as...