Mutual Building & Loan Ass'n v. Wyeth

• Citation: 17 So. 45,105 Ala. 639
• Court: Alabama Supreme Court
• Decision Date: 31 January 1895
• Parties: MUTUAL BUILDING & LOAN ASS'N ET AL. v. WYETH.

17 So. 45

105 Ala. 639

MUTUAL BUILDING & LOAN ASS'N ET AL. v. WYETH.

Supreme Court of Alabama

January 31, 1895

Appeal from chancery court, Marshall county; S. K. McSpadden Chancellor.

Bill by Euphemia Wyeth, executrix of Louis Wyeth, deceased, against the Mutual Building & Loan Association and others, to foreclose a mortgage. From a decree for complainant defendants appeal. Reversed.

The bill in this case was filed on July 31, 1893, by the appellee against the appellants, to foreclose a mortgage. The averments of the bill are sufficiently stated in the opinion. The respondents John and Louise Brisser demurred to the bill upon the following grounds: "(1) Because there is a misjoinder of parties defendant to said bill, the said Louise Brisser being improperly made a defendant to said bill. (2) Because there is a misjoinder of parties defendant. The said George W. Jones is shown by the bill to have no interest, nor to be asserting any, in and to the land described in the prayer of the bill." "(4) Because it is shown in and by said bill, and the exhibits thereto, that complainant has no title or interest, legal or equitable, in or to said premises described in the prayer of the bill. (5) Because it is shown in and by said bill, and the exhibits thereto, that complainant has no mortgage upon the premises described in the prayer of the bill. (6) Because complainant's testator conveyed back to defendant John Brisser, by deed of August 17, 1888, all interest, legal or equitable, which the former acquired under the mortgage of April 25, 1888, which is the mortgage here sought to be foreclosed. (7) Because said bill is without equity in this: it is shown in and by said bill that complainant has no claim against or interest whatever in, the premises described in the prayer of the bill." The respondent the Mutual Building & Loan Association demurred to the bill on the following grounds "(2) Because it is shown in and by said bill and exhibits thereto that the complainant has no title or interest, legal or equitable, in or to said premises described in the prayer of the bill. (3) Because it is shown in and by said bill and exhibits, that the complainant has no mortgage upon the premises described in the prayer of the bill. (4) Because complainant's testator conveyed back to defendant John Brisser, by deed of August 17, 1888, all interest, legal or equitable, if any, which the former acquired under the mortgage of April 25, 1888, which is the mortgage here sought to be foreclosed. (5) Because the description of the lands in the mortgage sought to be foreclosed is too vague to authorize the decree of foreclosure prayed for by the complainant. (6) Because said bill is without equity in this: it is shown in and by said bill that complainant has no claim against, or interest whatever in, the premises described in the prayer of the bill." Each of these respondents also moved to dismiss the bill for the want of equity.

O. D Street, for appellants.

Lusk & Bell, for appellee.

McCLELLAN J.

Louis Wyeth sold and attempted to convey to John Brisser "a parcel or tract of land," as it is spoken of in the deed, describing it therein as: "Certain portions of a lot in the town of Guntersville, Marshall county, state of Alabama, more particularly described as follows, that is to say: Two-thirds of the following described lot number three (3), in block A, bounded and described as follows: Commencing at a stake at the corner of Blount and Taylor streets, in said town; thence along Blount street one hundred and fifty-five (155) feet, more or less, to Gilbrath alley, to a stake; thence along said alley, and at right angles to said Blount street, seventy-four (74) feet and eight (8) inches to a stake; thence on a straight line to Taylor street, one hundred and fifty-five (155) feet, more or less; thence in a straight line to the beginning." All the purchase money was not paid at the time of this conveyance, and on the same day-April 25, 1888-Brisser and his wife executed a mortgage to Louis Wyeth, embracing said land, by the same description as the above contained in the deed, to secure the payment of the balance of the purchase money. After this-on August 17, 1888-Louis Wyeth executed to Brisser a conveyance in fee of the "east two-thirds" of the lot described in the first deed, in the mortgage, and also in this last deed, without any reference therein to, or reservation in respect of, said mortgage. ...