Ex parte Delpey

• Decision Date: 30 June 1914
• Docket Number: 871
• Citation: 66 So. 22,188 Ala. 449
• Parties: Ex parte DELPEY.
• Court: Alabama Supreme Court

66 So. 22

188 Ala. 449

Ex parte DELPEY.

No. 871

Supreme Court of Alabama

June 30, 1914

Petition by A. Delpey, Sr., for mandamus, directed to Hon. A.H Benners as chancellor, requiring him to allow an amendment to a bill filed by petitioner against the Thompson Realty Company. Mandamus awarded.

Beddow & Oberdorfer, of Birmingham, for appellant.

A Latady, of Birmingham, for appellee.

McCLELLAN J.

The single question presented by the petition for the writ of mandamus and the answer to the rule nisi is whether the amendment of the original bill, denied allowance by the chancellor, proposed a departure from the original bill. The original bill averred that in 1904 complainant purchased by lease-sale contract a lot, with the improvements thereon that the contract, exhibited with the bill, was signed "Thompson Realty Company, by J. Cary Thompson Manager;" that complainant went into possession of the property in 1904, and has been continuously since in possession thereof; that the Thompson Realty Company was a corporation; that in 1909, while complainant was in possession of the house and lot under the lease-sale contract and claiming to own it, Thompson Realty Company mortgaged the premises to Mrs. Sarah E. Nabers, to secure a loan from her; and that Mrs. Nabers took the mortgage charged with notice of complainant's title and equity by reason of his possession of the premises at the time the mortgage was executed. It was also averred in the original bill that complainant had fully paid all of the purchase price stipulated in the contract, or, if mistaken as to that, that he has paid a sum which entitled him to a warranty deed as provided in the contract; that the Thompson Realty Company has failed and refused to deliver the deed to him, although complainant has been and is ready and willing to execute all notes and mortgages for the balance of the purchase price as provided in the lease-sale contract. In this original bill Thompson Realty Company, a corporation, and Mrs. Nabers are named as the parties defendant. The prayer was that the mortgage be declared a cloud on complainant's title or, in the alternative, that it be made subject to complainant's prior equities. Mrs. Nabers answered the original bill, and among other things asserted that she was not advised of the existence of the Thompson Realty Company, a corporation, and that she did not hold any mortgage from that corporation; but that she had accepted and held a mortgage on the property executed by J. Cary Thompson, and his wife, Mabel B. Thompson, said J. Cary Thompson being the owner thereof.

The proposed amendment, which the chancellor denied, would change the bill so as to strike out the Thompson Realty Company, a corporation, as a party defendant; to make J. Cary Thompson and Mabel B. Thompson parties defendant; to aver that J. Cary Thompson employed the name Thompson Realty Company as a trade-name; and to aver "that heretofore, on, to wit the 12th day of September, 1912, J. Cary Thompson conveyed the above-described property to his wife, Mabel B. Thompson, who received said conveyance with full knowledge and notice of the said equities, right and title of your complainant." ...