Pearson v. Dancy

• Decision Date: 23 November 1905
• Citation: 39 So. 474,144 Ala. 427
• Parties: PEARSON v. DANCY ET AL.
• Court: Alabama Supreme Court

39 So. 474

144 Ala. 427

PEARSON v. DANCY ET AL.

Supreme Court of Alabama

November 23, 1905

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Bill by R. H. Pearson against Mary Lou Dancy and others. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

A. O Lane, for appellant.

Weatherly Underwood & Thach, for appellees.

SIMPSON J.

This is an appeal from a decree of the chancery court sustaining a demurrer to the bill of complainant (appellant here), and the first causes of demurrer are to the sufficiency of the allegations of the bill as to the mistake against which relief is sought.

The complaint alleges that a note was given for an amount supposed to be due for interest on a mortgage debt, but that "the sum was a mistake, as he was not due that amount of interest." The bill does not show particularly wherein the mistake consisted, whether he had knowledge of it at the time, nor any facts tending to show whether it was such a mistake, or made under such circumstances, as would justify equitable relief. Mr. Pomeroy says that "mistake, within the meaning of equity and as the occasion of jurisdiction, is an erroneous mental condition, conception, or conviction induced by ignorance, misapprehension, or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erroneously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time." 2 Pomeroy's Eq. Jur. pp. 299, 300, § 839; also section 854. It follows, then, that, in order that a court of chancery may know whether the mistake complained of is such as calls for equitable interposition, it is necessary that the bill should "state with precision the facts constituting" the mistake, and going to show whether it occurred without negligence on the part of the party complaining. 3 Mayfield's Dig. p. 231. The further statement that various sums were paid at different times does not make the matter any clearer, nor show why the complainant did not know what sums he had paid. While it may be true that complainant could not state exactly just what amounts had been collected of rents, income, and profits, which had not been accounted for, yet he certainly could state what amounts had been accounted for, and could give some facts tending to show what amounts should have been received, so that the court could have some information upon which to base a conclusion as to whether equitable relief is justified. Nor does it aver that any demand was ever made for a statement of account. These averments are entirely too general, and the first and second causes of demurrer were properly sustained.

We come next to consider the effect of the agreement, which is alleged to have been made in May, 1897, when the complainant conveyed the land in question to the respondents. The allegations of the bill show that said land had been, on July 7, 1890, mortgaged to respondents, for a debt of $22,000 that in May, 1897, there had been no accounting between the parties, but respondents, by their agent, claimed that the complainant was indebted to them in the sum of $6,080 for past-due interest, in addition to the original principal of $22,000, and complainant executed a deed conveying to them for the expressed consideration of said...