Hollis v. Harris

• Decision Date: 08 June 1892
• Citation: Hollis v. Harris, 96 Ala. 288, 11 So. 377 (Ala. 1892)
• Parties: HOLLIS ET AL. v. HARRIS ET AL.
• Court: Alabama Supreme Court

11 So. 377

96 Ala. 288

HOLLIS ET AL. v. HARRIS ET AL.

Supreme Court of Alabama

June 8, 1892

Appeal from chancery court, Pike county; JOHN A. FOSTER, Chancellor.

Bill by C. H. Hollis and another against W. H. Harris and others. From a decree dissolving a temporary injunction, plaintiffs appeal. Modified.

The bill sought to have the defendants enjoined against the prosecution of an attachment suit for the recovery of the lands in controversy, and to have a fee-simple title vested in the complainants. On the giving of the bond required, the chancellor ordered a temporary injunction to be issued. As exhibits to the bill, there were set out two deeds, one signed by the defendant S. M. Harris, and all the heirs and distributees of said S. M. Harris and her husband, W. T Harris, deceased, except T. J. Harris. The other deed set out as an exhibit to the bill was signed by T. J. Harris and J A. Harris, his wife. Each of these deeds commenced as follows: "Know all men by these presents, that I, Mrs S. M. Harris, widow of W. T. Harris, deceased, in the county of Pike and state of Alabama, in consideration of $700 paid by E. Hollis, in the county of Pike and state of Alabama, the receipt of which is hereby acknowledged, do hereby give grant," etc. There were no other grantors mentioned in the body of either of these deeds. Following the covenant of warranty in the deed is the following clause: "All of my children is of lawful age, and will sign the deed for themselves, making a legal title." The deed signed by T. J. Harris was not signed by Mrs. S. M. Harris, and was signed only by T. J. Harris and his wife. The acknowledgment of this deed was not in the form required by statute. T. J. Harris in his answer did not deny the allegations of the bill, but demurred to the same on the ground of the want of equity in the bill, and because the deed which purported to be executed by him was neither witnessed nor acknowledged as required by law. All the other defendants filed an answer denying the allegations of the bill, and moved to dissolve the injunction.

Gardner & Wiley, for appellants.

Parks & Gamble, for appellees.

WALKER J.

The foundation of the claim to relief against the respondents who are the appellees here, is that they signed the deed of Mrs. S. M. Harris to the husband and father of appellants, and thereby bound themselves to convey the lands therein described to him, though the instrument was ineffectual as a legal conveyance by them. The respondents, except T. J. Harris, by their sworn answer, deny in sweeping terms that they signed, executed, or delivered the instrument relied on. They aver that one Perry Rowe was the grantee in the instrument which they signed; that said Rowe backed out and refused to take the same; that the instrument was never delivered to him, but was left with their mother, Mrs. S. M. Harris, to be destroyed. They aver that after this instrument was signed by them, without their knowledge or consent, the name of Rowe therein was erased, and the name of the appellant here was inserted instead. Their answer shows explicitly that they were not parties to any contract to convey to the appellant. The instrument, as altered without their knowledge or consent, is not binding on them. The conveyance to Rowe, to which they consented, and which they signed, was never consummated by delivery. They never consented to be bound by a conveyance to the appellant. They had the undoubted right to determine to whom they would consent that the land be conveyed by them. Even if the conveyance to Rowe had been consummated by delivery,...