Sharpe v. Hyman

• Decision Date: 15 June 1899
• Citation: 26 So. 289,123 Ala. 105
• Parties: SHARPE ET AL. v. HYMAN ET AL.
• Court: Alabama Supreme Court

26 So. 289

123 Ala. 105

SHARPE ET AL. v. HYMAN ET AL.

Supreme Court of Alabama

June 15, 1899

Appeal from circuit court, Marengo county; James J. Banks, Judge.

Ejectment by A. Y. Sharpe & Son against Robert Hyman and Ida Brantley. Judgment for defendants, and plaintiffs bring error. Affirmed.

This was a statutory action of ejectment. Upon motion of Ida Brantley, who was the landlord of Robert Hyman, she was made a party defendant to the suit. The defendants pleaded the general issue. The evidence for the plaintiffs tended to show the following facts, upon which are based the plaintiff's claim to the property sued for. The defendants brought an attachment suit against Floyd Brantley, the husband of Ida Brantley, and a writ of attachment was levied upon a certain lot, numbered 880, in the city of Demopolis. Upon the rendition of judgment in favor of the plaintiffs in this attachment suit, the lot levied upon was, under an order of the court, sold, and at such sale the plaintiffs became the purchasers. This attachment was sued out on June 25, 1892 and was placed in the hands of the sheriff and levied on said lot on the day of its issuance. The lot was sold under the order of the court, as just stated, on October 17, 1892. On February 25, 1886, Simeon Miller, who was at that time the owner of said lot, executed to William Morris a mortgage on lots 880 and 885, in the city of Demopolis. Subsequently George J. Michael purchased said lots from William Morris and received from him a deed which was intended to convey lots numbered 880 and 885. At the time of the execution of said deed, William Morris assigned to Michael the mortgage from Simeon Miller, the written assignment indorsed thereon being as follows: "For value received, I hereby transfer, sell, and assign the within mortgage to George J Michael." George J. Michael, as a witness, testified that he bought the lots from William Morris for Floyd Brantley, the husband of Ida Brantley; that said Floyd Brantley had paid him all of the purchase price therefor, and also for the house which he, Michael, built on lot 880 for Floyd Brantley. The witness Michael further testified that he never claimed to have owned lot 886, and never sold it to Floyd Brantley; that he did sell lot 880, and put him in possession thereof; that he purchased from William Morris lots 880 and 885, and that in the execution of the deed by Morris there was a mistake made in describing the lots as 885 and 886 instead of those purchased; that he did not discover the mistake until about the time the present plaintiffs brought the attachment suit against Floyd Brantley; that he never intended to purchase lot 886, but it was distinctly understood that he purchased the two lots numbered 880 and 885; and that upon discovering the mistake he executed a deed to the plaintiffs for lot 880, which was one of the lots he sold Floyd Brantley. The plaintiffs introduced further evidence tending to show that at the time of the levy of the attachment on lot 880 in the suit by the plaintiffs against Floyd Brantley, said Floyd Brantley was in possession of lot 880, and claiming it as his own. The plaintiffs also introduced in evidence a deed from George J. Michael to plaintiffs, conveying to plaintiffs lot 880, which deed was dated April 25, 1895. The defendants introduced in evidence an instrument in writing, executed by Simeon Miller to William Morris on December 9, 1886, and recorded on June 29 1892, which instrument was signed by Simeon Morris and witnessed by one A. L. Ars, and was in words and figures as follows: "Demopolis, Alabama, Dec. 9th, 1886. In consideration of the amount of seventy-four 85/100 ($74.85) due Wm. Morris, I hereby transfer my rights, titles, and good will in 2 lots as described in a deed and mortgage held by Wm. Morris, empowering him to hold or sell same, as he may think proper, without any notice. Witness my hand and seal this, the 9th...