Lester v. Johnston

• Decision Date: 28 February 1903
• Citation: 137 Ala. 194,33 So. 880
• Parties: LESTER ET AL. v. JOHNSTON ET AL.
• Court: Alabama Supreme Court

33 So. 880

137 Ala. 194

LESTER ET AL. v. JOHNSTON ET AL.

Supreme Court of Alabama

February 28, 1903

Appeal from Chancery Court, Shelby County; R. B. Kelly, Chancellor.

Bill by S. L. Lester and another against S. F. Johnston and others for the reformation of a mortgage and for possession after foreclosure. From a judgment in favor of defendants complainants appeal. Reversed.

The bill was filed to correct a misdescription in a mortgage made by respondents, to correct the same misdescription in a deed and to obtain an order putting complainants in possession of the lands in controversy. The bill averred that after default the mortgage was foreclosed, and the lands conveyed therein were sold by the mortgagees, and that they were bought by complainants; that before the sale under the mortgage Isaac D. Mason died, and that by the terms of his will his widow Mary E. Mason, succeeded to his interest in the firm of Lester, Mason & Co. and in the lands involved in this suit that the said Mary E. Mason joined in the execution of the deed from Lester, Mason & Co. to complainants; that after the execution of this last deed it was discovered that the lands had not been correctly described in either the mortgage or the deed. It is further alleged that after the execution of the deed to complainants they demanded of Mrs. S. F. Johnston and W. H. Carleton possession of the said lands; that Johnston and Carleton were in the possession of the lands using them as a homestead, and that they declined to surrender possession to complainants. The bill further alleged that Mrs. Johnston claimed to have a life estate in said lands, and that said Carleton was the son of Mrs Johnston, and that he claimed to have a reversionary interest in said lands; that he, at the time of the filing of the bill, was in possession of the lands, with his mother, by her consent, and as her tenant. There was no allegation that a demand had ever been made to respondents to correct said instruments before the filing of the bill. The prayer of the bill was that the two instruments be corrected so as to make them describe the lands which they were intended to describe. The bill also prayed for an order that the register be empowered to issue a writ of possession to have the complainants put in possession of the lands in case respondents, or any one of them, refused to yield possession. Mrs. Mason filed a plea disclaiming any ownership or claim of ownership in the lands, and asked to be discharged by the court. Respondents Johnston and Carleton filed a joint plea and demurrers to the bill. Carleton also filed an answer, in which he denied the allegations of the bill. The court overruled the demurrers, and sustained exceptions to the sufficiency of the plea. Mrs. Johnston made no answer, and after this ruling of the court a decree pro confesso was rendered against her. Carleton, after the time for pleading had passed, and after the ruling of the court on the joint pleas and demurrers, and without permission from either the court or register, filed a plea setting up a claim of ownership in the lands; averring therein that he did not claim a reversion in the lands, but that he was a joint owner with his mother, and that he was a married man at the time of the execution of the mortgage; that he was using the lands as a homestead, and had so occupied them for several years prior to the execution of said mortgage; and that the mortgage was, as to him, void, because his wife did not join in the execution of the same. Complainants filed a motion to strike this latter plea from the file on the ground that it...