Joseph v. Decatur Land Improvement & Furnace Co.

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Joseph v. Decatur Land Improvement & Furnace Co., 102 Ala. 346, 14 So. 739 (Ala. 1894)
• Decision Date: 01 February 1894
• Parties: JOSEPH v. DECATUR LAND, IMPROVEMENT & FURNACE CO.

14 So. 739

102 Ala. 346

JOSEPH v. DECATUR LAND, IMPROVEMENT & FURNACE CO.

Supreme Court of Alabama

February 1, 1894

Appeal from city court of Decatur; W. H. Simpson, Judge.

Action by the Decatur Land, Improvement & Furnace Company against Martha E. Joseph to foreclose a mortgage. From a judgment for plaintiff, defendant appeals. Affirmed.

O Kyle, for appellant.

John C Eyster, for appellee.

McCLELLAN J.

This bill is filed by the Decatur Land, Improvement & Furnace Company, a corporation, against Martha E. Joseph, a married woman. It seeks the foreclosure of a mortgage executed by the respondent upon, and to secure the purchase money for, two certain town lots which she had bought from the land company. By answer, cross bill, and pleas, three lines of defense are attempted. In the first place it is insisted that the sale to the respondent was void for that, at the time it was made the lands of which these lots were a part had not been surveyed and platted, and a plat or map thereof filed and recorded in the office of the probate judge, as required by the act of February 28, 1887, (Acts 1886-87, p. 93.) This act, in the opinion of the writer, has reference to lands in incorporated towns; and he thinks it is a sufficient answer to the respondent's contention in this connection to say that whether this sale be considered to have been made in October, 1887, when negotiations began and same oral understanding was reached, or in May, 1888, when the transaction was fully consummated, the land was not in an incorporated town. Moreover, if the sale was made in May, 1888, when the deed and mortgage back were executed, the question is eliminated, also, by the fact that the statute, if applicable, had been complied with in the preceding February. My associates are, however, of the opinion that the act in question is not confined in its application to maps and plats of land in incorporated towns, and that if the sale made here had occurred prior to February, 1888, when the map was recorded, it would be avoided by the operation of the statute; but they are further of the opinion that for all the purposes of this case the sale must be taken as having been made in May, 1888, when the deed was executed by the land company to the purchaser, and the notes for, and mortgage to secure the payment of, the purchase money were executed by the purchaser to the company; and it is therefore the judgment of the court that the statute, having been complied with, exerts no influence upon the rights of the parties as presented in this record.

The attempted defense of coverture is equally without merit. The bill seeks no personal decree against Mrs. Joseph, but only a foreclosure of the mortgage and sale of the premises to pay the secured debt. This debt being for the purchase money of the land, it is of no consequence that the respondent is, and has all along been, a married woman, and had not been relieved of the disabilities of coverture in respect of this transaction by the assent, in writing, of her husband to her entering into it. Crampton v. Prince, 83 Ala. 246, 3 So. 519, and cases there cited; Wadsworth v. Hodge, 88 Ala. 500, 7 So. 194; Ramage v. Towles, 85 Ala. 588, 5 So. 342; Bogan v. Hamilton, 90 Ala. 454, 8 So. 186. And if it be conceded that the decree was technically irregular, or even erroneous, in that it, in terms, foreclosed the mortgage, against which the plea of coverture was good, instead of declaring and effectuating complainant's vendor's lien, as might have been done under the prayer for general relief, the irregularity or error is wholly without injury to the appellant,-since the relief actually granted is precisely that to which complainant was entitled upon a declaration and enforcement of the lien for purchase money,-and would not require or justify a reversal.

The other and main defense relied on is that the complainant induced the respondent to purchase the lots in question by certain false and fraudulent representations, which, it is now insisted, entitle the respondent either to rescind the sale and purchase in toto, and recover back the part consideration paid, namely, the value of a house erected by her on the land, or to recoup, against the demand advanced by the bill, the difference between the value of the lots abstractly considered and what would have been their value had the representations been true. In considering this question we shall not go into a discussion of the evidence but rather assume that the land company, through its officers and agents, communicated or stated to Mrs. Joseph the matters and things set forth in her answer and cross bill, of course not conceding her construction of what was said. These lots were situated at the corner of Second avenue and Prospect drive, two streets in the (then contemplated) town of New Decatur, and fronted on the latter. Second avenue was graded at the time of the sale; Prospect drive was not; and there was an appreciable difference between...