Hereford v. Hereford

• Decision Date: 28 June 1902
• Citation: 32 So. 651,134 Ala. 321
• Parties: HEREFORD v. HEREFORD.
• Court: Alabama Supreme Court

32 So. 651

134 Ala. 321

HEREFORD v. HEREFORD.

Supreme Court of Alabama

June 28, 1902

Appeal from chancery court, Montgomery county; W. L. Parks Chancellor.

Bill in equity by Harry Hereford against Lucy Hereford for the appointment of a receiver to preserve rents pending an action of ejectment. From an order denying defendant's motion to discharge the receiver, she appeals. Affirmed.

The bill in this case was filed on September 16, 1901, by the appellee, Harry Hereford, against Lucy Hereford. It was averred in the bill: That the complainant was the owner of a certain lot in the city of Montgomery, which was described in the bill as follows: "A part of lot five (5) in square twenty (20) in that part of the city of Montgomery, state of Alabama, laid off on the Scott property, said lot beginning at the northeast corner of the lot formerly owned by Mary Ann Green, and now owned by Dr. Scott, thence running north thirty-five (35) feet, thence seventy-five (75) feet west thence south thirty-five (35) feet, thence east thirty-five (35) feet to the point of beginning; said point of beginning being about seventy-eight (78) feet north of the northwest corner of the intersection of Union and Columbus streets in said city of Montgomery. Said lot fronts on the west side of Union street, and lies between Columbus and Randolph streets and was formerly occupied by your orator. That orator with his labor and means erected, upon said lot, a house, in which he and the said Lucy resided." In the year 1898, the said Lucy Hereford, who was then the complainant's wife "by continuous persuasion and harassment so overcome the free agency of orator as to induce him to sign a paper writing which purported to be a deed to the property above mentioned"; that in said deed the property attempted to be conveyed was described as follows: "A part of lot five (5) in square twenty (20), laid off on the Scott property in the city of Montgomery, state of Alabama, said lot beginning at the north corner of the lot of Mary Ann Green, thence running north thirty-five (35) feet, thence seventy-five (75) feet west, thence south thirty-five (35) feet, thence east seventy-five (75) feet to the point of beginning. That said Lucy paid to orator no valuable consideration whatever for said paper writing, and that the property described in paragraph three (3) of the bill constituted substantially all of the property, of any and all kinds whatsoever, owned by your orator, and that orator is now unable to support and maintain himself by his labor which is the only source of income to him." That in February, 1901, the said Lucy Hereford procured a divorce from complainant, and thereafter refused to surrender possession of said house and lot to the complainant, or allow him to enter or remain therein. That, subsequent to these acts on the part of the defendant, the complainant instituted an action of ejectment, in the city of Montgomery, against Lucy Hereford, to recover possession of the property described in the bill. It was then averred in the bill that the deed obtained from the complainant by Lucy Hereford conveyed no title to the defendant, because of uncertainty and indefinite description of the property; that said action of ejectment is still pending and undetermined; that, since the institution of said suit, Lucy Hereford has rented the property, and its rental value is $10 a month; that said Lucy Hereford is insolvent, and unable to respond in damages for the rents and profits of said property, and refuses to deliver possession of said property to complainant, and is collecting the rents therefrom and appropriating the same to her use. The bill also averred in its fourth paragraph that the complainant "received a fall which resulted in serious injury to his physical and mental condition, thereby incapacitating him from pursuing his avocation as a carpenter, to a large extent, and also thereby considerably reducing his income." The prayer of the bill was for the appointment of "a receiver to collect and hold the rents of said property, pending the determination of said ejectment suit in said city court of Montgomery, in accordance with the rules and practice of this honorable court; and, upon final hearing, may it please your honor to order, adjudge, and decree that your orator is entitled to the rents, incomes and profits of said property, and direct that the same be paid over to him; and orator prays for such other, further, or different relief as to your honor may seem meet and proper in the premises." In response to the petition of the complainant, the chancellor on September 18, 1901, appointed a receiver without...