Hess v. Hodges

Decision Date07 February 1918
Docket Number7 Div. 925
PartiesHESS et al. v. HODGES.
CourtAlabama Supreme Court

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Bill in equity by Libbie P. Hodges against J.A. Hess and others. Decree for complainant, and defendants appeal. Affirmed.

Embry &amp Embry, of Ashville, for appellants.

John W Inzer and J.P. Montgomery, both of Ashville, for appellee.

McCLELLAN J.

The appellee, Mrs. Hodges, filed this bill against J.A. Hess and his wife, L.M. Mize and his wife, W.C. Courson, and John Glenn. Mize and wife suffered decrees pro confesso to enter and Glenn, being only a tenant of Courson, disclaimed. They were without any particular interest in the meritorious issues involved. The contest proceeded in the court below with Hess and Courson as the only real litigants on that side of the line. The prayer for relief sought the correction of the description in the deed of the Mizes to complainant, dated December 21, 1910, and also the correction of the description in the mortgage given by Hess and wife on the 11th of November, 1913, to the complainant; and also the foreclosure of the mortgage on the land thus correctly described. There was an alternative prayer for relief, along with the general prayer; but the determination of the appeal does not require specific consideration thereof.

The witnesses were examined orally before the judge of the circuit; and it may be stated at this point that his conclusions of fact, after personally observing and hearing the witnesses, will not be disturbed unless plainly palpably erroneous. Fitzpatrick v. Stringer, 76 So. 932, among others.

On December 21, 1910, the complainant (appellee) purchased the two-acre lot in question from Mize and wife. She paid the purchase money and went into possession of the lot intended by the parties to be conveyed. There was a mistake in the description of the lot in the Mize deed. This deed was filed for record and faithfully recorded on January 10, 1911. The complainant built a dwelling house on the lot and otherwise improved it, expending therefor about $1,700. On November 11, 1913, the improved premises were sold by the complainant to J.A. Hess for a consideration of $1,800. A deed was executed and delivered to Hess, wherein the same mistake in the description of the lot was made as occurred in the Mize deed to the complainant. Hess gave a large number of installment notes, and executed a mortgage on the lot to complainant to secure the purchase money. A like mistake occurred in the description of the premises in the mortgage. Hess went into possession of the lot under his purchase, paying some cash. About two years after the delivery of the deed to Hess the mistake in the description in the Mize deed was discovered; and the Mizes, with the consent of the appellee or her agent, directed Probate Judge Herring, by letter, to enter on the record of this deed a specific correction of the misdescription. This was done by Judge Herring. The original deed from the Mizes to the complainant was also sought to be corrected; but whether this was done with appellee's consent or the consent of her agent was disputed in the evidence. The acknowledgment, delivery, and registration of the deed from Mize to complainant, having been perfected long before the interlineation in the original deed was made, the amendment of that instrument, even though made with the grantee's consent, had no effect or operation; the instrument not having been again acknowledged or attested. Sharpe v. Orme, 61 Ala. 263, 269; Webb v. Mullins, 78 Ala. 111, 114. For the same reason the deed from appellee to J.A. Hess was ineffectual to convey title to the lot in question to Hess; and the mortgage from Hess to complainant was likewise defective. The parties might, of course, have corrected these misdescriptions through the efficient execution and delivery of other instruments or the re-execution, in due form, of the amended instruments. Lavender v. Lee, 14 Ala. 688, 693. An equity to reform the instruments to make them describe the land intended to be conveyed was available (Gen.Acts 1911, pp. 199, 200; Goulding Fertz. Co. v. Blanchard, 178 Ala. 298, 303-310, 59 So. 485); but these respective instruments did not convey the legal title to the lot in controversy to Mize's grantee, to Hess, or to appellee as mortgagee.

Notwithstanding the warranty deed from Hess to Courson, of date February 18, 1916, contained a correct description of the lot in question, that instrument did not transmit to Courson the legal title to the lot; Hess, himself, not having the legal title to convey. One cannot be a bona fide purchaser where his grantor did not have the legal title to convey. State v. Conner, 69 Ala. 212, 217; Craft v. Russell, 67 Ala. 9; Overall v. Taylor, 99 Ala. 12, 18, 11 So. 738. Hence Courson, as the purchaser from Hess on February 18, 1916, could not claim the protection of a bona fide purchaser for value without notice. Courson and Hess filed separate answers to the bill. No cross-bill was interposed by either of them. The only debatable question presented by the bill arises out of the following averments in Courson's answer:

"Respondent avers that he is informed and believes and therefore states and charges that W.P. Hodges, who was then and is now the husband of the complainant, Libbie P. Hodges, made each and every one of the transactions alleged and set out in his said bill of
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14 cases
  • In re Health Science Products, Inc., Bankruptcy No. 94-03938-BGC-11. Adv. No. 94-00294.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama
    • 23 Mayo 1995
    ...original escrow agreement, since no title had passed pending delivery of the deed in escrow which could be conveyed); Hess v. Hodges, 201 Ala. 309, 310, 78 So. 85 (1918) (where grantor did not have legal title because description in recorded deed to him was defective, his grantee could not ......
  • Elstermeyer v. City of Cheyenne
    • United States
    • Wyoming Supreme Court
    • 19 Agosto 1941
    ... ... The court held that the contention ... was incorrect. The same principle was followed in Newman ... v. King (Ohio) 43 N.E. 683, also in Hess v ... Hodges, 78 So. 85; Moelle v. Sherwood, 148 U.S ... 21; Hurt v. Stout, et ux., 181 P. 623. The judgment ... of the trial court should ... ...
  • Sturdivant v. BAC Home Loans Servicing, LP.
    • United States
    • Alabama Court of Civil Appeals
    • 16 Diciembre 2011
    ...sale because it lacked authority to conduct that sale when it first published the notice of the sale. See generally Hess v. Hodges, 201 Ala. 309, 310, 78 So. 85, 86 (1918) (“One cannot be bona fide purchaser where his grantor did not have the legal title to convey.”). Under the circumstance......
  • Clark v. Whitfield
    • United States
    • Alabama Supreme Court
    • 23 Abril 1925
    ... ... Grey, 199 Ala. 152, 74 So. 62; ... Fitzpatrick v. Stringer, 200 Ala. 574, 76 So. 932; ... Caples v. Young, 206 Ala. 282, 89 So. 460; Hess ... v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A.1918D, 858 ... The ruling on demurrer to the bill as amended is assigned and ... urged as error ... ...
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