Heinz v. White

• Decision Date: 09 February 1895
• Citation: 17 So. 185,105 Ala. 670
• Parties: HEINZ v. WHITE ET AL.
• Court: Alabama Supreme Court

17 So. 185

105 Ala. 670

HEINZ v. WHITE ET AL.

Supreme Court of Alabama

February 9, 1895

Appeal from chancery court, Lauderdale county; Thomas Cobbs Chancellor.

Action in equity by H. J. Heinz against John F. White and others. From a decree sustaining defendants' demurrer to the bill, plaintiff appeals. Affirmed.

A. E Walker, for appellant.

COLEMAN J.

George White, a member of a company doing business in Kansas desired to obtain a line of credit from complainant, who, it seems, resided in the state of Pennsylvania, and, to carry out his purpose, offered to give complainant a mortgage on certain land situated in Alabama. Upon investigation the complainant ascertained that the legal title to the lands was in John F. White, and notified George White that the mortgage must be executed by John F. White. In due time the complainant received a note which purported to be signed by John F. White, and a mortgage of the lands, which purported to have been executed, and legally acknowledged before a proper officer, by John F. White. On the faith of the security the credit was obtained, and after default the mortgage was foreclosed under a power of sale; and the purchaser went into possession of the land, and has been ever since. John F. White then instituted the statutory action of ejectment to recover the lands. The complainant, who became the purchaser of the lands, filed the present bill, and obtained a temporary injunction to restrain the prosecution of the ejectment suit, and, upon facts averred, prayed for a cancellation of a deed which had been executed to Jennie G White, and by her to John F. White, by which the title became vested in him. The court having sustained a demurrer to the bill, the complainant appeals.

The facts averred in the bill are inconsistent with each other and, if proven, do not entitle the complainant to the same relief. The bill avers that in fact John F. White did not execute the note and mortgage, and that as the doctrine of estoppel does not prevail in a court of law, as to real estate, the complainant's only remedy is in a court of equity. The averments of the bill upon which the doctrine of estoppel is invoked, after detailing the circumstances of the transaction, are as follows: "That the said John F. White knew and was informed of the fact that George White was fraudulently and willfully deceiving orator in the execution of said mortgage, and allowed and permitted his father, George White, to sign his name to said mortgage and note by George White, in his name, for the purpose of perpetrating this fraud upon orator." If the averments on this phase of the case are made good by evidence, a clear case of estoppel is presented, and the complainant would be entitled to a perpetual injunction enjoining the plaintiff in the ejectment suit from asserting any right or title under his deeds against complainant. The decree would affirm the validity of the deeds and mortgage, but, because of his fraud, he would be estopped from claiming under them. The bill, however, further avers that the lands belong to George White, and that he had the title put first in his daughter, Jennie White, and, by his direction, conveyed by her to his son, John F. White, and that these deeds were made to hinder, delay,...