Green v. Dickson

• Decision Date: 29 October 1898
• Citation: 119 Ala. 346,24 So. 422
• Parties: GREEN v. DICKSON ET AL.
• Court: Alabama Supreme Court

24 So. 422

119 Ala. 346

GREEN v. DICKSON ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Cherokee county; James R. Dowdell Chancellor.

Bill by A. B. Green, Sr., against L. S. Dickson and others. There was a decree for defendants, and plaintiff appeals. Reversed.

The bill in this case was filed by the appellant, A. B. Green Sr., against the appellees, for the purpose of having corrected and reformed a deed of trust executed by J. W Dickson and wife and L. S. Dickson and wife to one J. N Farrow, trustee, so as to make said deed of trust describe the lands intended to be conveyed therein as they are correctly described in the bill, and also to correct and reform a deed executed by J. N. Farrow, trustee, so as to make it conform to the true description of the land conveyed therein, as correctly described in the bill, and also for the purpose of enjoining an action of ejectment brought by the respondents against the complainant for the recovery of said lands. It was averred in the bill that the deed of trust to J. N. Farrow, trustee, was executed to secure a loan of money made by the complainant to said Dicksons, and that upon default being made in the payment the deed of trust was foreclosed, and at the sale the complainant became the purchaser, and J. N. Farrow, as trustee, executed to him the other deed, which was sought to be corrected and reformed that, immediately upon the execution of this deed of Farrow to complainant, he went into possession of the property exercising acts of ownership, and claiming it as his own; that subsequent thereto the defendants in this suit instituted an action of ejectment against the complainant to recover said lands. The other facts averred in the bill are sufficiently stated in the opinion. Upon the filing of the bill a preliminary injunction was issued. To this bill the defendants demurred upon the following grounds: "First. Respondents demur to said bill of complaint for that J. N. Farrow, who is shown to be the trustee in the alleged deed of trust shown in Exhibit A to complainant's bill, is a necessary party to this suit, and he is not made a party complainant or respondent to said bill of complaint. Second. Said bill shows on its face that the complainant is not entitled to the relief therein sought as to the lands in Sec. 4, etc., of R. 10, because the said lands alleged to have been pledged in said trust deed are only described as 'part of the N.W. 1/4 of Sec. 4, T. 9, R. 10, containing 88 acres,' and said description fails to show that said lands are in Cherokee county, Ala., and fails to show in what part of the N.W. 1/4 of said Sec. 4 said lands are located, and fails to furnish any kind of data by which the said 88 acres of land can possibly be located. Third. There is no equity in said bill, because it shows on its face that the said lands attempted to be described in said deed of trust are not so described that a perfect description can be based upon the recitals of said trust deed, because there are no data in said trust deed, or in the deed by the trustee, J. N. Farrow, to complainant, by which the uncertain description of the lands in controversy can be rendered certain, because the said deed of trust fails to show on which side of the meridian said lands are located, and because said lands are not shown to be in Cherokee county, in the state of Alabama. Fourth. There is no equity in said bill, because the said 88 acres of land in Sec. 4, and the S. 1/2 of the S.E. 1/4 of the S.E. 1/4 of Sec. 32 (in all, 108 acres), are shown to be the homestead of J. W. Dickson, and of value less than $2,000, and the remaining lands, to wit, the N. 1/2 of the S.E. 1/4 of S.E. 1/4 and N.E. 1/4 of S.E. 1/4 of Sec. 32 (in all, 60 acres), are shown to be the homestead of L. S. Dickson, of value less than $2,000. That the said J. W. Dickson and L. S. Dickson at the time of the alleged execution of said trust deed were each married men, and said bill shows affirmatively that said deed of trust did not convey the said homesteads of the said J. W. and L. S. Dickson, because there is no separate acknowledgment on the part of the wives of said J. W. and L. S. Dickson, as was required at the time of the alleged execution of said deed of trust by the statutes in such cases; because there is no separate acknowledgment to said trust deed on the part of the wife of said J. W. Dickson, and no separate acknowledgment on the part of the wife of L. S. Dickson, as the law requires to perfect the conveyance of their respective homesteads; and because in the pretended separate acknowledgment to said trust deed it is not shown who the wife of J. W. Dickson is, or who the wife of L. S. Dickson, is, and the same is not shown by the recitals in said trust deed, or elsewhere in the body of said paper, or in any of the pretended acknowledgments thereto. Fifth. Said bill is without equity, because it seeks the reformation of a conveyance of the homestead of the said J. W. Dickson and L. S. Dickson, and fails to show a legal execution of the imperfect conveyance. Sixth. Said bill is without equity as to said J. W. Dickson's heirs, because it shows that, at the time of foreclosure of the same, said J. W. Dickson was dead, and fails to make his wife a party to said bill, or show that she is dead. Seventh. Said bill is without equity as to the heirs of said J. W. Dickson, deceased, and because it seeks, as against said heirs, the reformation of a deed alleged to have been executed by their ancestor, said J. W. Dickson. Eighth. Said bill is without equity, because it seeks to reform an alleged imperfect deed, and fails to aver that said imperfections were brought to the knowledge of respondents, and they were given an opportunity to correct the same, before the beginning of this suit. Ninth. Said bill shows that L. S. Dickson is a married man, and seeks to reform the conveyance of his homestead, and fails to make his wife a party to said suit." The defendants also moved to dissolve the injunction, and to dismiss the bill for the want of equity. On the submission of the cause upon the demurrers and the motions, the chancellor rendered a decree sustaining the first, second, and third grounds of demurrer, and overruled the other grounds. He also sustained the motion to dismiss the bill for the want of...