Harris v. Nichols
| Decision Date | 21 May 1931 |
| Docket Number | 6 Div. 872. |
| Citation | 134 So. 798,223 Ala. 58 |
| Parties | HARRIS v. NICHOLS. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Bill to cancel a deed and mortgage by G. Vander Nichols against C. W I. Harris. From a decree overruling a demurrer to the bill respondent appeals.
Reversed and remanded.
Mathews & Mathews and H. H. Sullinger, all of Bessemer, and J. T Johnson, of Oneonta, for appellant.
A. L. Sapp, of Cullman, and W. C. Rayburn, of Guntersville, for appellee.
The bill seeks the cancellation of a deed and mortgage executed by complainant to respondent, resting upon the right of rescission by reason of alleged fraudulent representations. Bullard Shoals Mining Co. v. Spencer, 208 Ala. 663, 95 So. 1; Merritt v. Ehrman, 116 Ala. 278, 22 So. 514; National Life & Accident Ins. Co. v. Propst, 219 Ala. 437, 122 So. 656; Hyman v. Langston, 210 Ala. 509, 98 So. 564.
It appears from the bill that in the transaction here complained of, which consisted in an exchange of certain real estate between the parties, respondent conveyed to complainant one hundred and twenty acres of land. There is no offer to reconvey or to restore said property to respondent, and, indeed, no general offer to do equity. For such failure to offer restoration, the bill is subject to the fifth assignment of demurrer, which properly takes the point. Mathews v. J. F. Carroll Merc. Co., 195 Ala. 501, 70 So. 143; Owens v. Harris (Ala. Sup.) 133 So. 6; Baggett Merc. Co. v. Vickery, 213 Ala. 427, 105 So. 207; Summers v. Jordan, 220 Ala. 402, 125 So. 642; Grider v. Amer. Freehold Mortgage Co., 99 Ala. 281, 12 So. 775, 42 Am. St. Rep. 58.
The foregoing authorities from this court are in harmony with the generally recognized rule elsewhere (9 Corpus Juris, 1241), and with any exception thereto we are not here concerned.
We are also inclined to the view the bill fails to measure up to the rule of equity pleading in charging fraud. General averments of fraud will not suffice, but the constituent facts must be averred so that the court can see clearly that fraud has intervened. Hyman v. Langston, supra; McDonald v. Pearson, 114 Ala. 630, 21 So. 534.
The word "uneducated," used in the bill, is one of relative meaning, and, if complainant meant to aver that he could not read, and therefore did not know the contents of the deed, he accepted, which recited the facts, and was misled by respondent...
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Shepherd v. Kendrick
... ... as in Perry v. Boyd, 126 Ala. 162, 28 So. 711, 85 ... Am.St. Rep. 17; Mortgage Bond Co. v. Carter, 230 ... Ala. 387, 161 So. 448; Harris v. Nichols, 223 Ala ... 58, 134 So. 798; Bullard Shoals Mining Co. v ... Spencer, 208 Ala. 663, 95 So. 1; Merritt v ... Ehrman, 116 Ala. 278, ... ...
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Sun Oil Co. v. Oswell
...The cases cited by appellant showed such a duty on the part of complainant. Shamblee v. Wilson, 233 Ala. 164, 170 So. 769; Harris v. Nichols, 223 Ala. 58, 134 So. 798. These cases involved a quieting of title or cancellation of some instrument in which complainants were due to make restitut......
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McBee v. McBee
...should aver facts disclosing in what the alleged fraud consists, advising the respondent what he is called upon to defend. Harris v. Nichols, 223 Ala. 58, 134 So. 798; Hyman v. Langston, 210 Ala. 509, 98 So. 'But this may be done in few or in many words, as the case may be. Thus, in a bill ......
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...can be clearly seen that fraud has intervened to prevent a discovery of the wrongful act upon which the action is based. Harris v. Nichols, 223 Ala. 58, 134 So. 798; Mineral Land Co. v. Hooper, supra; 37 C.J. 975, § 357. It is nowhere averred that defendant ever knew he had left the sponge ......