Jones v. McNealy

• Decision Date: 21 January 1904
• Citation: 35 So. 1022,139 Ala. 378
• Parties: JONES v. MCNEALY ET AL.
• Court: Alabama Supreme Court

35 So. 1022

139 Ala. 378

JONES v. MCNEALY ET AL.

Supreme Court of Alabama

January 21, 1904

Appeal from Chancery Court, Lee County; Richard B. Kelly Chancellor.

Bill by Ida E. Jones against Mrs. Florence G. McNealy and others. From a decree sustaining demurrers to the bill, complainant appeals. Reversed.

The purpose of the bill, as amended, was to have a deed executed by Mrs. Lou V. Smith to her daughter, Mrs. McNealy, reformed corrected, and canceled as to a certain portion of a lot described therein, and purported to be conveyed by said deed. This relief was based upon the grounds that Mrs. Smith did not intend, nor was it understood between her and Mrs McNealy that she should, convey the whole of said lot, but a certain designated portion thereof. The complainant, among other things, averred in her bill that after the execution of said deed to her daughter, Mrs. McNealy, the said Lou V Smith executed a deed to the complainant conveying a certain specifically described portion of said lot, and that the complainant had erected valuable improvements in the shape of houses, etc., on the portion of the lot conveyed to her. It was further averred that upon another portion of the lot, to which it was the intention of Mrs. Smith to retain title, after conveying the portion of said lot to Mrs. McNealy, Mrs. Smith had given a mortgage, and that this mortgage had, at the request of Mrs. Smith and Mrs. McNealy, been purchased by and assigned to the complainant. It was further averred that, notwithstanding the mistake which had been made in the description of the land intended to be conveyed by Mrs. Smith in her deed to Mrs. McNealy, the said Mrs. McNealy instituted two separate suits of ejectment against the tenants of the complainant, and that said suits were then pending. The prayer of the bill was for an injunction to restrain the further prosecution of the ejectment suits, and that the deed be corrected so as to speak the real intention of the parties, and that it be canceled so far as the portion of the lot which had been conveyed to the complainant, and which had been conveyed in the mortgage subsequently assigned to the complainant. It was further prayed that the amount due upon said mortgage be ascertained, and that the said mortgage be foreclosed.

Houston & Power and Geo. A. Hays, for appellant.

Barnes & Duke, for appellees.

TYSON J.

The bill, as amended, to which the demurrer was sustained, seeks to have a certain deed executed by Mrs. Smith to her daughter, Mrs. McNealy, reformed and canceled as to a certain portion of the lot described in it and purported to be conveyed by it, and to correct the description in the mortgage now held by complainant, and to foreclose it, and also to enjoin certain actions of ejectment instituted by Mrs. McNealy, etc. It proceeds, in so far as the reformation and cancellation of the deed under which Mrs. McNealy claims title to the whole lot, upon two theories: First, upon the ground of a mutual mistake by the parties to it; and, second, in the event there was no mistake, upon the ground of an estoppel in pais predicated upon the conduct of Mrs. McNealy. The right of the complainant to the relief she seeks is based upon two conveyances--one a mortgage, referred to above, acquired by transfer, and the other a deed--both of which were executed by Mrs. Smith, conveying a certain portion of the lot covered by the deed previously executed by Mrs. Smith to her daughter. A demurrer comprising 11 assignments was interposed to the bill as amended. The chancellor, it appears, only regarded the first two grounds meritorious. These two practically raise the same question. They go to the entire bill, and challenge the right of the complainant to relief upon the ground that it is not shown that she had no notice or knowledge of the alleged mistake in the deed from Mrs. Smith to her daughter. It is true the bill does not allege her want of notice or knowledge of the fact. And, construing its averment most strongly against the complainant, it must be taken that she...