Gewin v. Shields
| Decision Date | 02 June 1910 |
| Citation | 167 Ala. 593,52 So. 887 |
| Parties | GEWIN ET AL. v. SHIELDS. |
| Court | Alabama Supreme Court |
Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.
Bill by G. W. Shields against W. C. Gewin and another. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.
Francis M. Lowe and Nisbet Hambaugh, for appellants.
Charles J. Dougherty, for appellee.
The case made by the bill is that appellee is an illiterate man of small means and business capacity; that prior to August 15, 1908, he owned a small house in Jefferson county, near Birmingham, Ala. On that date he was approached by the respondent Fortenberry, in Birmingham, who inquired of him what he was doing in Birmingham, Appellee replied that he was going to the bank to see if he could borrow some money which he needed, to which Fortenberry rejoined that appellee did not have to do that; that he (Fortenberry) would lend him all the money he needed. Thereupon, at the solicitation of Fortenberry, as the bill avers, they entered into the following agreement: etc.
The bill alleges that said Fortenberry never loaned appellee a cent, and never did anything which he agreed to do; that after declining and failing to perform his agreement, the said Fortenberry promised to destroy the mortgage, and told appellee that he need not worry about it any more, and that appellee thought his property was no longer incumbered; that Fortenberry, instead of destroying the document, had it recorded; that it was for the first time discovered by appellee's attorney to be an absolute deed and not a mortgage; that said Fortenberry, to further carry out his fraudulent scheme to get appellee's home, executed to the other respondent, Gewin, what purports on its face to be a mortgage on this land to secure a note for $500 which Fortenberry owed Gewin; that, to further carry out this fraudulent scheme, Gewin foreclosed his mortgage and purchased at his own sale, and is now demanding possession of orator's home. The bill seeks to have these several instruments delivered up and canceled as a cloud on complainant's title, and to prevent the respondents from hereafter harrassing appellee by means of these fraudulent deeds and mortgages. The bill, however, offers to pay any or all amounts, if any, that the court may find to be due from him to any one of the respondents, which may constitute a lien or incumbrance upon the property. The respondents demurred to the bill, assigning various grounds, but the court overruled the demurrers; and from that decree this appeal is taken.
There is a no more common head of...
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...of their terms subject to construction, are expressed in the long line of cases from English v. Lane, 1 Port. 328, to Gewin v. Shields, 167 Ala. 593, 52 So. 887, and protect against frauds involving property rights of the parties. Sims v. Riggins, 201 Ala. 99, 77 So. 393; Bullard Shoals Min......
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...is not a distinctive ground for equitable jurisprudence. Bullard Shoals Mining Co. v. Spencer, 208 Ala. 663, 95 So. 1; Gewin v. Shields, 167 Ala. 593, 52 So. 887; Merritt v. Ehrman, 116 Ala. 278, 22 So. 514; Smith Ex'r v. Cockrell, 66 Ala. In Butts v. Cooper. 152 Ala. 375, 44 So. 616, the e......
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...stated in his brief, is as follows: 'The equity jurisdiction of the probate court has been invoked and as said in Gewin v. Shields, supra [167 Ala. 593, 596, 52 So. 887, 888]. "There is no more common head of equity jurisdiction than to relieve against 'If this appellant were executor he wo......
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