Mitchell v. Cudd

• Decision Date: 13 April 1916
• Docket Number: 8 Div. 872
• Parties: MITCHELL et al. v. CUDD.
• Court: Alabama Supreme Court

71 So. 660

196 Ala. 162

MITCHELL et al. v. CUDD.

8 Div. 872

Supreme Court of Alabama

April 13, 1916

Appeal from Chancery Court, Morgan County; James E. Horton, Jr. Chancellor.

Bill by J.J. Cudd against Harry Mitchell and others, to foreclose mortgages on real estate and to reform the descriptions in such mortgages, with amendment seeking the cancellation of a conveyance. Demurrers overruled, and defendants appeal. Decree affirmed.

P.M Brindley, of Hartselle, and E.M. Russell, of Decatur, for appellants.

E.W Godbey, of Decatur, for appellee.

McCLELLAN J.

In the amended bill the appellee is the complainant, and Frank O Mitchell and others are the respondents. The dominant purpose of the bill is to foreclose two mortgages on real estate, one executed to complainant, on September 4, 1907, by M.A., John, Harry, Mollie, and G.A. Mitchell, and the other, executed to complainant, on June 26, 1911, by M.A. Mitchell, and to reform specified features of the descriptions of lands in the mortgages. Frank O. Mitchell is the son and heir at law of M.A. and John Mitchell, now deceased. An exhibit to the bill is a copy of a conveyance executed on August 15, 1905, by M.A. and John Mitchell to Frank O. Mitchell. The amended bill seeks, among other things, the cancellation of this conveyance, which, if unavoided, would render ineffectual the complainant's mortgages on the land described in the conveyance to Frank O. Mitchell. That the amended bill, in its general theory, possesses equity is manifest.

Three questions are discussed in brief for appellants who invoke review of the decree overruling the demurrers. The consideration of the appeal is, of course, confined to these questions:

1. The averments of paragraph 6 of the amended bill fully refute the first contention, viz., that complainant, when he accepted the first or the second mortgage, had actual knowledge of the existence of the deed of August 15, 1905, to Frank O. Mitchell. The allegations of this paragraph affirmatively exclude the notion that complainant had, until after he had accepted the second mortgage (June 26, 1911), knowledge or notice of the existence of the conveyance to Frank O. Mitchell.

2. The effect of the contention that the bill is multifarious because it seeks the cancellation of the conveyance of August 15, 1905, to Frank O. Mitchell, is to say that the mortgagee (complainant) must, in a separate cause, invoke the courts to...