Jackson v. Lucas

• Decision Date: 30 June 1908
• Citation: 47 So. 224,157 Ala. 51
• Parties: JACKSON ET AL. v. LUCAS.
• Court: Alabama Supreme Court

47 So. 224

157 Ala. 51

JACKSON ET AL. v. LUCAS.

Supreme Court of Alabama

June 30, 1908

Appeal from Chancery Court, Randolph County; W. W. Whiteside Chancellor.

Bill by Nixon Lucas against J. W. Jackson and another to reform a mortgage. From a decree denying a motion to dismiss the bill and overruling a demurrer thereto, defendants appeal. Reversed and rendered.

Whatley & Cornelious, for appellants.

Lackey & Bridges and Hooten & Overton, for appellee.

DENSON J.

Stevens executed a mortgage to Schuessler & Co. on 80 acres of land to secure a present indebtedness. The correct description of the land is S. 1/2 of N.E. 1/4 and S. 1/2 of N.W. 1/4 of section 2, in township 21, of range 10, in Randolph county but the scrivener, in drawing the mortgage, described the lands as being in section 22, so that a mistake was made in the description of the land. After the law day in 1896, as the bill shows, Schuessler & Co. advertised and sold the lands under the mortgage, and became the purchasers at said sale. After the sale they rented the lands to Stevens for the year 1897, and for several years thereafter. On June 4, 1903 the individual members composing the firm of Schuessler & Co. sold and conveyed by deed, with full covenants of warranty, the land, by its correct numbers, to W. P. Lucas. Lucas went into possession and held the lands as his own until the 31st of December, 1904, when he sold and conveyed by deed, with full covenants of warranty, the land by its correct numbers to Nixon Lucas, who went into immediate possession and has remained in possession ever since. After the foreclosure sale (the exact time not being shown by the bill) Stevens sold and conveyed the land to J. W. Jackson for a consideration of $20. Jackson, on the 18th day of May, 1906, instituted a statutory action of ejectment against Nixon Lucas' tenant to recover possession of the lands. The tenant, in the manner required by the statute, had Nixon Lucas made a party defendant to the ejectment suit. The bill here was filed by Nixon Lucas, against Stevens and Jackson, to reform the mortgage so as to make it read "section 2," instead of "section 22," and to perpetually enjoin the ejectment suit. A motion to dismiss the bill for the want of equity, and a demurrer to the bill, were overruled by the chancellor; and this appeal was taken from that decree.

The first proposition which presents itself for consideration is whether or not Nixon Lucas, complainant, stands in such relation of privity to the mortgage as that he may maintain the bill. There can be no doubt of the right in Schuessler &amp Co., as mortgagees, before the attempted foreclosure, to maintain a bill to correct the description of the land in the mortgage; and it may be conceded (though we do not decide the point) that, had the mistake been carried into their deed to W. P. Lucas, and into the deed from Lucas to complainant, "equity would work back through all," and entitle the complainant (the last vendee) to a reformation against the mortgagor. 18 Ency. Pl. & Pr. 797. But we have seen that no mistake occurred in either of the conveyances subsequent to the mortgage; and in the case of Blackburn v. Randolph, 33 Ark. 119, 125, which was an action by the last vendee of a series of conveyances, where it was contended that there was no privity between the complainant and the trustee in the deed of trust under which the first sale was made, the court on this point said: "If, in either one of these conveyances, the deed of trust, that from Tate, or Bartlett, or Sheppard, or Buck, or Drake, there was...