Davidson v. Brown

• Decision Date: 04 November 1926
• Docket Number: 6 Div. 315
• Parties: DAVIDSON v. BROWN et al.
• Court: Alabama Supreme Court

110 So. 384

215 Ala. 205

DAVIDSON v. BROWN et al.

6 Div. 315

Supreme Court of Alabama

November 4, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by Mittie Mahone Brown against M.L. Davidson and John B. Reid. From a decree for complainant, respondent Davidson appeals. Affirmed.

Armstrong Cory, of Birmingham, for appellant.

Harsh Harsh & Harsh, of Birmingham, for appellees.

This case having been submitted under Supreme Court rule 46, the opinion of the court was prepared by Mr. Justice SOMERVILLE.

As we understand the bill of complaint, it presents two grounds as bases for relief: (1) Respondent's fraudulent misrepresentations as to the nature of the instrument which he induced complainant to execute; and (2) respondent's fraudulent misrepresentations as to the mortgage incumbrance on his own lot. On the first ground--the instrument being a legal nullity--complainant would be entitled to relief by cancellation only upon a showing that she was in possession of the lot at the time of filing suit. Smith v Roney, 182 Ala. 540, 62 So. 753; Wilkinson v Wilkinson, 129 Ala. 279, 30 So. 578; Brown v Hunter, 121 Ala. 210, 25 So. 924. But on the second ground--the fraud going to the consideration and inducement only, and the instrument being voidable merely--equity will intervene to declare a rescission of the contract and the surrender and cancellation of the deed, or a reconveyance of the property, regardless of complainant's want of possession. Shipman v. Furniss, 69 Ala. 555, 562, 563, 44 Am.Rep. 528; Hafer v. Cole, 176 Ala. 242, 249, 57 So. 757; Baker v. Maxwell, 99 Ala. 558, 14 So. 468.

In such a case there is no remedy by ejectment at law, because fraud not going to the execution of the deed, as by misreading it to the grantee, or misrepresenting its contents, or the like, is not available in a court of law to nullify the deed, and rescission by the vendor, though effective in other respects, does not revest in him the title to land once fully vested in the purchaser. Swift v. Fitzhugh, 9 Port. 39, 63, 64; Mordecai v. Tankersly, 1 Ala. 100; Giles v. Williams, 3 Ala. 316, 317, 37 Am.Dec. 692; Costillo v. Thompson, 9 Ala. 937, 946; Thompson v. Drake, 32 Ala. 99, 103; 18 Corp.Jur. "Deeds," 227, 228, § 147, citing numerous authorities. This principle seems to have been recognized in Brown v. Hunter, 121 Ala. 210, 212, 25 So. 924, where the foregoing cases are cited. Doubtless it has been lost sight of in some of our numerous decisions affirming the general rule that equity will not take jurisdiction to cancel a cloud on title unless the complainant shows that he is in possession of the land, but it has never been denied, so far as we are advised.

The bill in this case does in fact allege possession in the complainant, and, incidental to the relief prayed by cancellation, it seeks to quiet the title in the manner of the statutory jurisdiction to that end. As a bill in the latter aspect, it is defective in not alleging a "peaceable" possession in complainant; but no objection was taken to the bill as for misjoinder of causes, or for defective allegation as to any aspect of right or remedy. This operated, of course, as a waiver of such objections (Penny v. B. & A. Mortgage Co., 132 Ala. 357, 31 So. 96; Smith v. Roney, 182 Ala. 540, 62 So. 753; Bruce Coal Co. v. Bibby, 201 Ala. 121, 123, 77 So. 545; Hyman v. Langston, 210 Ala. 509, 511, 98 So. 564), and the court was authorized to grant any appropriate relief within the allegations and prayers of the bill, if the evidence justified it.

The burden of proof was of course on the complainant to establish her charges of fraud, or one of them. Conceding, for the argument, that she failed to convincingly establish fraud in the execution of the deed, and that she had not the possession of the land at the time her bill was filed, we are clear in the conclusion that she was intentionally deceived by the respondent as to the mortgage incumbrance on his own property, offered to her in exchange for the lot she conveyed to him, and that this deception as to the nature and value of the consideration that induced her conveyance entitled her to a rescission of the contract of exchange, under the general prayer of the bill, and, incidentally, to the other relief specially prayed.

In his answer the respondent sets up, as an estoppel against complainant's right to relief, the facts that he delivered his deed to her, that she accepted it, and that thereafter, by reason of her failure to pay the mortgage debt--he believing that she had undertaken to do so--his property was...