Hampton v. Reichert

• Decision Date: 16 June 1921
• Docket Number: 1 Div. 181
• Citation: 90 So. 311,206 Ala. 463
• Parties: HAMPTON v. REICHERT.
• Court: Alabama Supreme Court

90 So. 311

206 Ala. 463

HAMPTON v. REICHERT.

1 Div. 181

Supreme Court of Alabama

June 16, 1921

Rehearing Denied Oct. 13, 1921

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill by Haley Hampton against J.H. Reichert to cancel a deed as a cloud upon title and because obtained by fraud. From a decree denying the relief prayed for, complainant appeals. Affirmed.

Brooks & McMillan, of Mobile, for appellant.

Gaillard Mahorner & Arnold, of Mobile, for appellee.

MILLER J.

This is a bill to cancel a deed because it was obtained by fraudulently misrepresenting its contents to complainant by defendant or his agent.

The bill alleges that Haley Hampton, complainant, owned lot 7 of first division of John Chastang tract; that defendant by his agent John E. Logan "solicited from him a contract to sell the land hereinabove described, and presented to complainant a paper which he represented to complainant to be a contract or option to purchase the said land or to sell the same for complainant"; that nothing was paid for said contract, complainant has received no compensation for same and "has never knowingly made a deed covering said land to any one"; but complainant alleges that "respondent, J.H. Reichert, has a deed purporting to convey said land to him by complainant, *** and that said deed is the document presented by John E. Logan to complainant and signed by complainant on a misrepresentation of its contents as hereinbefore stated"; and "that said deed is now on record in the probate office of Mobile county, Ala., and is a cloud on complainant's title to said land."

There was no demurrer to the bill. The respondent, J.H. Reichert in answering the bill, among other things, avers that the title of complainant to lot 7 was defective; and "respondent proposed to complainant to buy lot 7 from him for $5 cash, file a bill in chancery court to quiet the title and put the lot on the market for sale, and that, after respondent's expenses had been deducted, to divide the net proceeds equally between them. *** Complainant readily agreed to make a deed on those terms, and Mr. Logan was requested to then and there draw a deed from complainant and his wife to this respondent, which was done. *** Complainant had the deed read to him and at once executed it." And it was also executed by his wife. That $5 cash was paid complainant. An attorney was employed to file the bill in chancery court of Mobile county to quiet the title, which was done, and final decree rendered September 8, 1916. That said lot is in the hands of a real estate man for sale, and no purchaser has been obtained. "That respondent recognizes complainant's right to receive one-half of the net proceeds arising from a sale of lot 7 after this respondent has been reimbursed for his outlays in the matter. ** That no mention was made of any contract or option to sell, and only a sale on the terms above stated, and a deed to carry it out where mentioned. *** That no misrepresentations were made to complainant and that he signed the deed well knowing it to be such."

The complainant testified:

"I have had conversations with J.E. Logan with reference to selling my land, lot 5, which conversation was this: He was to sell the land, and I was to pay him for selling that land, and this was the only agreement that I ever had with him in my life. I conferred with him about selling this land one time, and the agreement was that I was to give him a commission to sell the land, lot 5, when he found a purchaser for the land, and when I got my money for the land I was to make a deed and pay Logan his commission. Logan presented a paper for me to sign."

He also testified that--

"The verbal agreement was made at the same time that Logan presented the paper for me to sign. I never signed any other paper except the paper I signed under the conditions I have named. I never made a deed to him or any one else that I know of."

The allegations of the bill of complaint and the testimony of complainant do not correspond. There is a material variance. The bill alleges that he owned lot 7, and agreed to give a contract or option to purchase or sell the same; and that he under misrepresentation signed a deed instead of "a contract or option to purchase or sell." In his testimony he agreed for Logan to have an option to sell lot 5, instead of lot 7, as averred in the bill. The allegata and probata do not correspond. When the material allegations and necessary proof do not harmonize the complainant cannot recover. Clements v. Kellogg, 1 Ala. 331; 5 Ala.Ency.Dig. § 240, and authorities there cited.

This may be a clerical error--self-correcting--intending lot 7 instead of lot 5; but complainant's entire evidence is to the contrary. The complainant testified that he owned lot 7. He purchased lot 7 from John Bray 27 years ago for $69.55, but he says he agreed for Logan to have an option to sell lot 5. S.C. Cherry, witness for complainant, testified, "The agreement was that Haley [[Hampton] was to pay Mr. Logan to sell lot 5 for him," and this witness also said:

"Haley Hampton was to pay Mr. Logan to sell lot 5, and it was under

...