Hendon v. Morris

• Decision Date: 16 April 1896
• Citation: 20 So. 27,110 Ala. 106
• Parties: HENDON v. MORRIS ET AL.
• Court: Alabama Supreme Court

20 So. 27

110 Ala. 106

HENDON v. MORRIS ET AL.

Supreme Court of Alabama

April 16, 1896

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

Bill by S. N. Morris against C. D. Guttery and another, to reform and foreclose a mortgage. From the decree, defendant T. S Hendon, who filed a cross bill in the suit, appeals. Affirmed.

On September 16, 1893, the appellee, S. N. Morris, filed a bill against C. D. Guttery and M. A. Guttery, his wife. The bill averred that on February 9, 1892, the defendants executed to the complainant a mortgage to secure an indebtedness of $250 on certain lands, which were described in the mortgage as follows: "An undivided half interest in the E. 1/2 of the S.E. 1/4 of Sec. 7, and the N.W. 1/4 of the N.W. 1/4, and the N. 1/2 of the S.W. 1/4 of the N.W. 1/4, Sec. 17, except the mineral interest in the above-described land; and the following land in fee simple, to wit: the N.E. 1/4 of the N.E. 1/4, and the S.E. 1/4 of the N.E. 1/4, except 4 acres more or less, in the S.E. corner, sold and deeded heretofore by William Guttery to T. J. King,-in all, 216 acres more or less, all in township 14, range 8 west, warranted free from incumbrance, and against adverse claims." The bill further averred "that, at the time of the drafting and execution of said mortgage, it was the intention, both of the complainant and de-defendants, C. D. and M. A. Guttery, to convey by said mortgage the N.E. 1/4 of the N.E. 1/4, and the S.E. 1/4 of the N.E. 1/4, of section 18, except four acres more or less, in the S.E. corner, sold and deeded heretofore by William Guttery to T. J. King, all in township 14, range 8 west, but by mistake, and through the inadvertence of the draftsman of said mortgage, the section, to wit, 18, was omitted from said mortgage." The prayer of the bill was that the description of the property conveyed in the mortgage should be corrected so as to show that the lands were in section 18, and that after such correction the mortgage should be foreclosed for the payment and satisfaction of the indebtedness secured by the mortgage. Subsequently the bill was amended by making T. S. Hendon, the appellant, a party defendant, and by averring that on April 20, 1893, the defendants, C. D. Guttery and his wife, M. A. Guttery executed a mortgage to T. S. Hendon, on the lands mentioned in the bill, to secure certain indebtedness which was due him by the defendants at that time, but that, at the time of the execution of said mortgage, T. S. Hendon knew that the lands which were the lands described in the mortgage to the complainant were intended to be properly contained therein. There were decrees pro confesso against C. D. Guttery and M A. Guttery. The defendant T. S. Hendon answered the bill, and, in his answer, alleged that, at the time of the execution of the mortgage to the complainant, C. D. Guttery and M. A. Guttery were not indebted to him in any amount, and that the said mortgage and note referred to therein were without consideration, and that at the time of the execution thereof Guttery was wholly insolvent, and was unable to pay his just debts due to the respondent and several other creditors, who were pressing him for payment; that the said mortgage to the complainant was made for the purpose of hindering, delaying, and defrauding his creditors, without consideration; and that the complainant knew of the fraudulent and covinous intent, or was in possession of facts calculated to excite suspicion, which, if diligently followed up, would have led him to a discovery of such intention. The respondent then avers that on May 19, 1890, C. D. Guttery and M. A. Guttery were indebted to him in the sum of $150, as evidenced by their bond, and that on that day they executed a mortgage to him, to secure the payment of said indebtedness, upon property which was described in said mortgage as follows: "The mineral interest only in and to the E. 1/2 of the N.W. 1/4, except 4 acres in the S.E. corner of section 18; the N. 1/2 of the S.W. 1/4 of N.W. 1/4 of section 17, 9 acres, more or less,-all in township 14, range 8;" that by mistake, oversight, or inadvertence of the parties to this mortgage, or through the unskillfulness of the draftsman who prepared it, the lands which were intended to be conveyed in said mortgage, in section 18, were omitted therefrom, and that instead of the E. 1/2 of the N.W. 1/4 in section 18, the land should have been described as the E. 1/2 of the N.E. 1/4 of section 18; and that such was the intention of the parties to said instrument. The respondent further averred that on April 20, 1893, C. D. Guttery and his wife, M. A. Guttery, were indebted to him in the sum of $175, as evidenced by their promissory note, and that in order to secure the same they did, on that day, execute a mortgage on lands situated in said county, and described as follows: "The surface only of their undivided one-half interest in the E. 1/2 of S.E. 1/4, section 7; E. 1/2 of the N.E. 1/4, section 18, except five acres, more or less, in the southeast corner of said fraction; N.W. 1/4 of N.W. 1/4, and N. 1/2 of S.W. 1/4, of N.W. 1/4, section 17, township 14, range 8;" that the first of the said mortgages above described was recorded in the probate office of said county on May 22, 1890, and the second was filed for record and recorded on May 18, 1893. The respondent further averred that when the complainant took the mortgage from C. D. and M. A. Guttery, described in the bill, he knew of the mistake in respondent's first mortgage, and that, therefore, the mortgage of the complainant upon the E. 1/2 of the N.E. 1/4 of section 18 is subject and subordinate to the mortgage of the respondent, which was executed on May 19, 1890. The respondent prayed and his answer be taken as a cross bill, and that upon the final hearing of the cause a decree be rendered correcting and reforming the mortgage executed on May 19, 1890, so as to have the land described therein as the E. 1/2 of the N.E. 1/4 of section 18, instead of the E. 1/2 of the N.W. 1/4 of section 18, and that when so corrected a decree of foreclosure be rendered, and that the second mortgage executed by the respondent on April 20, 1893, be also foreclosed. The complainant demurred to the cross bill on the ground that it was multifarious, in that it is a creditors' bill, and also a bill for a foreclosure and reformation of a mortgage. This demurrer was overruled. The evidence tended to show that the mortgage to the complainant, Morris, was given to secure the payment for advances to be made to C. D. Guttery during that current year, and to secure the repayment to Morris of $100 which he had contracted to pay to one Boshell in payment of an indebtedness due said Boshell from said C. D. Guttery, and that at the time of the execution of the mortgage the mortgagors also executed to the complainant, Morris, a crop lien for $250 as additional security for the payment of the debt evidenced by the note; that, at the time of the execution of the mortgage, Morris did not know that Hendon claimed any interest in the property owned by C. D. Guttery, except a mineral interest, as shown by the mortgage to him. It was also shown that it was intended that the mortgage to Morris should convey the E. 1/2 of the N.E. 1/4 of section 18, except four acres in the southeast corner. The evidence for the defendant and the cross complainant sustained the averments of the cross bill as to the execution of each of the mortgages described therein, and also as to the mistake which was made in the description of...