Sherer v. Garrison

• Decision Date: 14 April 1896
• Parties: SHERER ET AL. v. GARRISON ET AL.
• Court: Alabama Supreme Court

19 So. 988

111 Ala. 228

SHERER ET AL. v. GARRISON ET AL.

Supreme Court of Alabama

April 14, 1896

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill by John M. Sherer and Eda Jones against Consada Garrison and Martha A. Jeton, wife of J. S. Jeton, for partition. The facts averred in the bill as the ground of relief prayed for are substantially as follows: On December 21, 1882, one James A. Jones, who was the owner of the S.E. 1/4 of the S.E. 1/4 of section 15, township 15, range 7 W., executed a deed conveying the said land to Sarah Garrison. At the time of the execution of this deed, J. A. Jones was a married man, but his wife did not join in the execution of said deed. In June 1886, Sarah Garrison, the grantee in said deed, died intestate, leaving surviving her Artemesia Jones, the wife of James A. Jones, Eda Jones, Consada Garrison, and Martha A Jeton, the wife of J. S. Jeton. After the death of Sarah Garrison, to wit, on August 27, 1891, James A. Jones and his wife, Artemesia Jones, executed a deed to John M. Sherer conveying to him the lands which had been previously conveyed to Sarah Garrison, and placed said Sherer in possession thereof, who has remained in possession ever since. Sherer paid the purchase money of the property so conveyed to him but the deed, by reason of certain imperfections, was invalid. On May 21, 1892, Consada Garrison brought a statutory action of ejectment against John M. Sherer to recover said lands, and in this action a judgment was rendered for the plaintiff, and the writ of possession issued, which was in the hands of the sheriff of Walker county at the time of the filing of the bill. After the termination of this suit in ejectment, Artemesia Jones, after the death of her husband, James A. Jones, executed, on April 12, 1893, a deed to John M. Sherer to correct the errors made in the former conveyance to him by herself and husband, in which the lands were properly conveyed to said Sherer. The bill then averred that the complainants and Consada Garrison and Martha A. Jeton are tenants in common and joint owners of the lands in controversy, and that without objection on the part of his co-tenants John M. Sherer has made valuable improvements on said lands. The prayer of the bill was that Consada Garrison and Martha A. Jeton be made parties defendant, and that an injunction be issued restraining Consada Garrison from executing a writ of possession in the hands of the sheriff, and from causing said writ to be executed, and from executing or causing to be executed any other writ of possession issued on said judgment; that upon the final hearing of the cause said injunction be made perpetual, and that the lands involved in the controversy and described in the bill be sold for partition among the complainants and the defendants. The respondents made a motion to dissolve the injunction and to dismiss the bill for the want of equity. Upon the hearing of this motion the chancellor ordered that they be granted, and decreed that a temporary injunction theretofore granted be dissolved, and that the cause be dismissed. From this decree the present appeal is prosecuted, and the same is here assigned as error. Reversed.

Appling, McGuire & Collier, for appellants.

Coleman & Bankhead, for appellees.

McCLELLAN J.

In Hillens v. Brinsfield (decided at the present term) 18 So 604, it was held, overruling Johnson v. Ray, 67...