Hulsey v. Folsom, 6 Div. 691
| Decision Date | 06 August 1970 |
| Docket Number | 6 Div. 691 |
| Citation | 286 Ala. 474,241 So.2d 889 |
| Parties | Ellis HULSEY, Rose Mary Hulsey (Individually) and Rose Mary Hulsey, as Administratrix, etc. v. W. B. FOLSOM and Tri-State Bldg. Corp., a Corporation. |
| Court | Alabama Supreme Court |
Carlton Mayhall, Jr. Haleyville, for appellants.
Walter Joe James, Jr., Haleyville, for appellees.
Ellis Hulsey and Rose Mary Hulsey are husband and wife. On March 30, 1965, Joseph A. Dunn and Dorothy Dunn, Rose Mary Hulsey's parents, deeded to their daughter and son-in-law two acres of land out of the eighty which they owned, for the purpose of building a house on this two-acre lot. This deed was prepared by a stenographer and described the two-acre parcel as being in the NW corner of the E 1/2 of the NW 1/4 of the SE 1/4.
According to the testimony of Mrs. Dunn, she and her husband went to the office of an attorney, who was not in, and the deed was prepared by his stenographer. She testified that they did not tell her how to describe the two acres, but showed her what they wanted, showing her the deed and their abstract. Her testimony was that they told the stenographer they wanted to deed their daughter and her husband a parcel of land an acre wide east and west and two acres wide north and south out of the eighty acres which they owned. Mrs. Dunn testified that she and her husband intended to give their daughter and son-in-law two acres of land, starting at the north corner.
The deed was prepared and recorded.
Thereafter, in the summer of 1966 the Hulseys entered into an agreement with Tri-State Building Corporation, whereby Tri-State agreed to build a house on the two-acre lot. The Hulseys executed a mortgage to Tri-State which carried the same description of the property as was contained in the deed from the Dunns to the Hulseys.
Later on the house was completed. According to the testimony of Mr. Hulsey, the parties had agreed that the house would cost $12,500 and would be financed through FHA. His testimony was that he was told at the time the discussion took place about building the house that the payments on it would 'run $67 and some few cents a month'. However, after the house was completed and at the loan closing, he learned that the payments would be $89 per month, and he refused to sign the papers. His testimony was that he changed his mind about going through with the transaction when he learned that the payments would be more than $67 per month, which was his understanding at the time the mortgage was signed.
Up until this time, neither party to the transaction was aware that there was a possibility that the house had not been built on the two-acre lot described in the deed and mortgage.
Thereafter appellee Folsom (to whom the mortgage had been assigned) instituted foreclosure proceedings. At this point in time it was discovered that (according to one survey of the property) the deed and mortgage did not properly describe the land on which the house was built.
Thereupon the appellees filed a bill seeking reformation of the deed and mortgage to have the description therein conform to the two acres upon which the house was situated and for foreclosure.
Mrs. Dunn testified that she did not know where the two-acre lot as described in the deed was actually situated on the ground and 'didn't care where they put it (the house) because I had given them the land'. Mr. Hulsey testified that he did not know where the two acres were.
The case was tried ore tenus to the trial court which entered a decree reforming the deed and mortgage and ordering foreclosure.
This appeal is from the decree.
The appellants assign 23 grounds of error. However, they raise but two points.
The first is that the court erred in allowing one of the surveyors to testify with respect to the manner in which he found the starting corner of the land because he testified that the corner of the property though well marked (in his words 'marked as well as any corner in the country') was pointed out to him by Mr. Dunn, who was at the time of the trial, deceased. The appellants contend that this testimony violated the Dead Man Statute.--Title 7, § 433, Code of Ala. The Dead Man Statute does not disqualify this witness. The statute expressly provides that only those who have a pecuniary interest in the result of the suit are disqualified to testify about transactions with the deceased person. Under no stretch of the imagination can it be argued that the surveyor who testified that he had made a survey of the property had a pecuniary interest in the outcome of this litigation. This court has repeatedly held since the adoption of the Dead Man Statute that the testimony of a witness is not excluded where he is not a party to the suit, nor interested in the result.--See cases collated at Ala.Dig., Witnesses, k125, 139(1); and following Title 7, § 433, Code of Ala. The statute was never intended to disqualify disinterested witnesses.
The only other assignments of error simply assert that the trial court erred in entering a decree reforming the deed and mortgage.
The position of these appellants is difficult to understand. Throughout the trial below they testified that they had been satisfied that the house was on the land conveyed by the deed involved; they were satisfied with the house itself; they did not know that (according to a survey made after the foreclosure was begun) the mortgage did not describe the two acres on which the house was built. Mr. Hulsey testified that he had no objection to the foreclosure itself, that his interest was not in preventing the foreclosure, but he would not sign documents requiring monthly payments in the amount of $89. The appellee Folsom testified that the Hulseys had picked out the site for the house. They did not deny that they had had the spot where the house was to be built graded and...
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Mid-State Homes, Inc. v. Anderton, MID-STATE
...applies to the April, 1962, deed as well as to the mortgage of January 30, 1968, which was foreclosed. The case of Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889, not cited in briefs, has been carefully considered. The facts in that case are in some respects strikingly similar to the facts o......
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Stephens v. Stephens
...of the action. Sudderth is not a party to the action and stands to gain no pecuniary benefit from its outcome. See Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889 (1970). Sudderth simply has no pecuniary interest in the outcome of this action; therefore, the third criterion necessary to invok......
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Sheppard v. T. R. Miller Mill Co., Inc.
...is now a county commissioner and it does not appear that he has any pecuniary interest in the result of this lawsuit. Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889 (1970). Nor, for that matter, is an employee ipso facto incompetent under the 'Dead Man's' statute, although he may be if perso......
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First Bank of Russell County v. Wells
...to describe the property upon which the house was actually built. On this point, we think the case is controlled by Hulsey v. Folsom, 286 Ala. 474, 241 So.2d 889 (1970). In Hulsey, supra, the Dunns deeded two acres of an eighty-acre tract to their daughter and son-in-law (the Hulseys) for t......