Fite v. Kennemer

• Decision Date: 22 May 1890
• Citation: 7 So. 920,90 Ala. 470
• Parties: FITE ET AL. v. KENNEMER.
• Court: Alabama Supreme Court

7 So. 920

90 Ala. 470

FITE ET AL. v. KENNEMER.

Supreme Court of Alabama

May 22, 1890

Appeal from chancery court, Jackson county; THOMAS COBBS Chancellor.

The original bill in this case was filed by the appellee, Sarah Kennemer, against the appellants, and sought to have a mortgage made by the husband of the complainant declared null and void as to her interest in the lands sought to be conveyed therein, and removed as a cloud on her title. By amendment to the original bill, the complainant alleged that the lands in controversy could not be equitably divided among the tenants in common, and prayed a sale of said lands for partition. All the other facts and averments of the bill are sufficiently set forth in the opinion. The defendants demurred to the bill as amended, and moved to dismiss the same, on the ground that the amendment introduced an entirely new cause of action. The chancellor overruled the demurrer and motion to dismiss, and on final hearing granted the relief prayed in the amendment, and each of these decrees are here assigned as error.

Watts & Son and J. E. Brown, for appellants.

Norwood & Ashley, for appellee.

CLOPTON J.

The assignments of error, pressed in argument, relate to overruling the demurrers to the original and amended bills and the motion to dismiss for want of equity. Since the decision in Bank v. Rice, 4 How. 225, the rule has been regarded as settled beyond question that a person whose name does not appear, and who is not otherwise designated as a grantor, in the body of a deed or mortgage of lands, does not become such by merely signing the instrument and affixing his seal jointly with another, who is named and designated, and the conveyance does not operate to pass his estate or interest in the land. Harrison v. Simons, 55 Ala. 510; Madden v. Floyd, 69 Ala. 221. Complainant is not named, nor is she otherwise designated as a grantor in the mortgage which she seeks by the bill to have removed as a cloud on her title to an undivided half interest in the land, the subject of this suit. Her husband, who owned the other half interest only, is named and designated, and he alone conveys. Though complainant affixed her signature and seal jointly with her husband, the mortgage, not containing any words of conveyance, or evidencing an intention to convey her estate or interest, is void as to her. Blythe v. Dargin, 68 Ala. 370. It is true that in an action of ejectment, whether brought by complainant against the mortgagee, or by the mortgagee founded on the mortgage, she would not be required to offer extrinsic evidence to show the inherent defect in order to recover in the one case, or to defeat a recovery in the other. The mere exhibition of the mortgage would be its condemnation. It may be conceded that as a court of equity will not intervene to remove a deed void on its face, as a cloud on the title, if this was the only purpose of the bill, it would be without equity. The record, however, does not disclose that any action was taken by the chancellor on the demurrer to the original bill, and it does not seem to be controverted that complainant is entitled to the relief granted, if the amendment to the bill was properly allowed; for under the bill as amended, the cancellation of the mortgage is sought as preliminary and incidental to the ultimate relief of partition. The propriety of the amendment is, therefore, the only question...