Reddick v. Long

• Decision Date: 18 January 1900
• Citation: 124 Ala. 260,27 So. 402
• Parties: REDDICK ET AL. v. LONG.
• Court: Alabama Supreme Court

27 So. 402

124 Ala. 260

REDDICK ET AL. v. LONG.

Supreme Court of Alabama

January 18, 1900

Appeal from chancery court, Henry county; Jere N. Williams Chancellor.

Bill by J. B. Long against R. E. L. Reddick and others. From a decree in favor of complainant, defendants appeal. Reversed in part.

The bill in this case was filed by J. B. Long, under the statute to compel the determination of claims and to quiet the title to certain lands, which were described in the bill as follows: "The S. 1/2 of section 20 and the E 1/2 of the S.W. 1/4 of section 19, township 1, range 27, in Henry county, Alabama." The complainant based his claim to the property involved in the controversy upon the following facts: On November 3, 1890, at a sale of lands belonging to the estate of James W. Balkum, made under an order of the probate court, the complainant became the purchaser of said lands; and the administrator de bonis non of the estate of James W. Balkum, deceased, executed a deed of conveyance of said lands to the complainant. It was then averred in the bill that James W. Balkum during his lifetime purchased said lands at a sale under an execution which was issued on a judgment recovered by one John W. Brett against Lewis Gregory; that the levy of said execution was made on April 5 1869. It is then averred that in making the levy the sheriff made a mistake in describing the lands as being in range 29 whereas the lands owned by said Gregory were in range 27, and that in the execution of the deed to James W. Balkum, as purchaser at the execution sale, the sheriff made the same mistake; that Gregory owned no lands, at the time of making the levy and sale thereunder, in range 29, and that it was the intention of the sheriff to levy upon the lands involved in this controversy, which are situated in range 27; that, upon the making of the deed by the sheriff at the sale under the execution, the said James W. Balkum went into immediate possession of the lands involved in this controversy, and held open, notorious, and continuous possession of the same up to the time of his death, in 1889 or 1890; that he paid the taxes on said property; and that after his death his representatives have, and since the purchase by the complaint the complainant has, paid the taxes on said property, up to the time of the filing of the bill in this case. It is then averred that the complainant is in peaceable possession of the property, and that there is no suit pending involving the title to said property; that R. E. L. Reddick, Julia Crittenden, Ella Gregory, and W. F. Gregory, heirs of said Lewis Gregory, and one Jacob Jones and Isham Russ, set up some claim to said property. The prayer of the bill was, under the statute, for the determination of title to said property, and, further, that the deed by the sheriff to the said James W. Balkum be corrected so as to describe the said lands conveyed therein as being situated in range 27 instead of range 29. There was a decree pro confesso against R. E. L. Reddick and the other heirs of Lewis Gregory deceased. The defendants Jones and Russ demurred to the bill on the ground that it seeks to reform the deed executed by a public officer, who sold the lands involved at public sale, and that the deed sought to be reformed is not such a contract as a court of equity will reform because of accident or mistake. This demurrer was overruled. Thereupon the defendants Jones and Russ filed their answer, in which they denied the allegations of the bill, and set up a claim in themselves, respectively, to the S. 1/2 of section 20, but made no claim to the E. 1/2 of the S.W. 1/4 of section 19, as described in the bill. The defendants also included in their answers the demurrer on the ground that the bill was multifarious, in that "it seeks to enforce a contract by which title to the lands in controversy will be perfected in complainants, and further seeks to then remove a cloud from said title." The other facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause on the pleadings and proof, the chancellor rendered a decree overruling the demurrers for multifariousness, and, granting the relief prayed for by the complainant, ordered that the deed from the sheriff to Balkum, bearing date of April 5, 1869, should be corrected by striking out "range 29," and inserting in lieu thereof "range 27," as part of the description of the land, and further adjudging that the complainant is invested with the title to the lands involved in the controversy, and that neither Jacob Jones nor Isham Russ has any right, title, interest in, or incumbrance upon said land or any part thereof, and, in accordance with the decree pro confesso against the other defendants, further adjudged that neither of them had any estate, interest in, or incumbrance upon said lands. From this decree the respondents appeal. All of the respondents except Jacob Jones join in assigning as error the decree of the court overruling the demurrers, and the rendition of the final decree granting the relief prayed for. Jacob Jones severs in the assignment of error, and separately assigns as error the rendition of the several decrees of the court.

Espy & Farmer, for appellants.

Harmon, Dent & Weil, James G. Cowan, and Wm. C. Oates, for appellee.

SHARPE J.

The bill seeks, under the act of December 10, 1892, which forms, substantially, sections 809 to 813 of the Code, to settle, as against claims of defendants, the title to lands alleged to be claimed by, and in the peaceable possession of, the complainant, and to have corrected an alleged mistake in the description of the lands as contained in a sheriff's deed appearing in the chain of complainant's asserted title. A dispute concerning the title is thus involved, and the correction sought is germane, if not necessary, to its settlement, so that the subject-matter is one, and is not open to objection for multifariousness. The jurisdiction of equity to correct deeds in matter of description of the property intended to be conveyed is not confined to conveyances following upon contract. No good reason appears why deeds made in the execution of statutory powers should be excepted from the general equity which exists for the correction of a mutual mistake, and to effectuate the intention of the parties to the instrument. In affirmation of the court's power in this class of cases, it was said in Gardner v. Moore, 75 Ala. 394, "There are cases opposed to this view, but we are of the opinion that they do not announce the better doctrine." A sheriff's deed may be so corrected. Devl. Deeds, § 1432; Zingsem v. Kidd, 29 N. J. Eq. 516; Vanderbeck v. Perry, 28 N. J. Eq. 367. In such a case the correction may be effected by the terms of the decree, without requiring a re-execution of the deed; and the sheriff, having acted only as the instrument of the law in attempting to carry out its mandate, and owning no interest in the property, should not be made a party to the suit.

The demurrer was properly overruled, but, passing to the proof it is apparent that the court erred in decreeing a correction of the deed. The remedy for the subjection of lands to fi. fa. is wholly statutory. Lewis Gregory died in 1864 or 1865. By the statute in force then, and when the proceedings were had in the attempted enforcement of the judgment against him, there was no authority for the issuance of execution, unless one had been issued and received by the sheriff during his lifetime. Code, 1852, §§ 1930, 2459; Rev. Code, §§ 2289, 2875. It does not appear that execution was ever issued upon this judgment until 1866. Another was issued and levied in 1867, and the next (being the one under which the last levy and the sale were made) was issued in 1869. The writ was therefore unauthorized, and conferred no authority to levy or sell. Brown v. Newman, 66 Ala. 275; Hendon v. White, 52 Ala. 597; May v. Parham, 68 Ala. 252; Enslen v. Wheeler, 98 Ala. 200, 13 So. 473. Unsupported by a prior valid execution, the sheriff's deed is a nullity, and could pass no title to the property. Nor would its reformation now be retroactive, as color of title, to give constructive possession to lands not originally described. Equity will not attempt the...