Stacey v. Taliaferro, 3 Div. 957.

• Decision Date: 21 January 1932
• Docket Number: 3 Div. 957.
• Citation: 140 So. 748,224 Ala. 488
• Parties: STACEY ET AL. v. TALIAFERRO ET AL.
• Court: Alabama Supreme Court

140 So. 748

224 Ala. 488

STACEY ET AL. v. TALIAFERRO ET AL.

3 Div. 957.

Supreme Court of Alabama

January 21, 1932

Rehearing Denied March 31, 1932.

Appeal from Circuit Court, Conecuh County; T. J. Bedsole, Judge.

Bills in equity by Joe, Fred, Oscar, J. C., and Ruby Stacey, Mattie Farrish, Sadie Stacey Owens, and Leila Stacey Lee, against C R. Taliaferro, E. J. McCreary, and Luther Stacey; by C. R Taliaferro against W. A., Joe, Luther, Fred, Ed., and W. O Stacey and W. T. Smith Lumber Company, with a cross-bill by Joe Stacey; by C. R. Taliaferro against the Staceys, Farrish Owens, Lee, Evergreen Motor Company, and Smith Lumber Company, with a cross-bill; by J. C. and Ruby Stacey, Sadie Owens, and Leila Lee, against C. R. Taliaferro, E. J. McCreary, C. S. O'Neal, T. E. Henderson, Smith Lumber Company, Alice and the other named Staceys; and by C. R. Taliaferro against E. G. Stacey, C. S. O'Neal, and T. E. Henderson-consolidated by agreement. From the decree, J. C. Ruby, Oscar, Luther, Fred, Ed., and Joe Stacey, Sadie Owens, Leila Lee, and Mattie Farrish appeal.

Corrected and affirmed.

C. L. Hybart, of Monroeville, for appellants.

Hamilton & Jones, of Evergreen, for appellees.

BROWN J.

By agreement of the parties five suits pending on the equity docket were consolidated and submitted in the circuit court as one case, which was disposed of by a single decree from which ten of the parties jointly prosecute this appeal, and the case was submitted here on a joint assignment of errors, without severance in the assignment of errors.

The rule is well settled that where errors are jointly assigned injury must be shown to all parties joining in the assignment to sustain it. Cook et al. v. Atkins, 173 Ala. 363, 56 So. 224; Alabama Penny Savings Bank v. Holmes, 184 Ala. 469, 63 So. 969; Mobile Temperance Hall Ass'n v. Holmes et al., 195 Ala. 437, 70 So. 640; Hall et al. v. First Bank of Crossville, 196 Ala. 627, 72 So. 171; Chavers et al. v. Mayo, 202 Ala. 128, 79 So. 594; Davis et al. v. W. F. Vandiver & Co., 160 Ala. 454, 49 So. 318; Barrett et al. v. Doe ex dem. McCarty, 157 Ala. 449, 48 So. 49; Anthony v. Seed, 146 Ala. 193, 40 So. 577; Lehman et al. v. Gunn et al., 154 Ala. 369, 45 So. 620.

The appellants claim an interest in the lands involved in this litigation as the heirs at law of W. T. Stacey and his wife Sophia Stacey, both deceased; and the appellee Taliaferro claims under mortgages executed by W. T. Stacey, and their foreclosure, and under judgment liens obtained against Stacey prior to his death.

The first assignment imputes error to the decree in so far as it denied the claim of some of the appellants, asserted in their bill filed December 24, 1925, that a certain quitclaim deed, purporting to have been executed on the 26th day of March, 1910 (and filed for record November 15, 1911), by J. C. Stacey and his wife Susie Stacey, Leila Stacey, Ruby Stacey, Sadie Stacey, Mattie Stacey, and her husband R. C. Farrish, to W. T. Stacey, was a forgery. The bill in that case was filed by the appellants J. C. Stacey, Leila Stacey Lee, Ruby Stacey, and Sadie Stacey Owens, against W. T. Stacey and the appellee Taliaferro and others, whose interest he acquired before the case was submitted. The bill sought the cancellation of the quitclaim deed and the mortgages subsequently executed by W. T. Stacey, under which appellee Taliaferro claims as clouds on their title.

Mattie Farrish, who appears to have joined in the execution of the quitclaim deed, did not join as a complainant, and as to the other appellants, the deed upheld by the decree did not affect their interests, and they were in no way prejudiced thereby. This assignment of error, therefore, cannot be sustained. Davis et al. v. W. F. Vandiver & Co., 160 Ala. 454, 49 So. 318.

The second assignment imputes error in the decree of the court in so far as it adjudges that the appellee Taliaferro has an undivided interest in the east half of the southeast quarter of the southeast quarter of section 35, township 9, range 10 east, situated in Conecuh county.

It is conceded by appellee that this twenty-acre tract is not covered by the foreclosure deed, nor specifically described in any of the mortgages executed by W. T. Stacey, but appellee contends, first, that the proceeds derived from the foreclosure sale were not sufficient to satisfy the mortgage debts, and that following the specific description by government numbers of a large tract, or several tracts, the description was supplemented in two of said mortgages by the following: "It being intended to cover and describe all of the real estate owned by the grantor herein named," and in the other, "Being intended to cover and describe all of the real estate owned by the grantor herein named."

It is well settled that where a conveyance clearly and specifically describes the premises conveyed by metes and bounds, or by the government survey, so that the property conveyed may be readily ascertained, such description must prevail over general words of description, the presumption being that the grantor intended to convey only the lands particularly and clearly described; but this presumption may be rebutted in a court of equity. Garner et al. v. Morris, 187 Ala. 658, 65 So. 1000; Pettit et al. v. Gibson, 201 Ala. 177, 77 So. 703.

The fact that the mortgagee in the foreclosure proceedings only foreclosed as to the lands specifically described tends to confirm the presumption that this twenty-acre tract was not covered by the mortgages.

The other contention of appellee is that this land was covered by the bill filed by some of the appellants to cancel the quitclaim deed, and other pleadings in respect thereto, which indicated that the mortgages embraced said land, and they are now estopped to assert error in the decree. It would seem a sufficient answer to this contention that the deed alleged to have been made to W. T. Stacey described this tract along with other lands, and therefore it was necessary to the relief sought by that bill that it be so included.

We are therefore of opinion that the court erred in adjudging that Taliaferro had an undivided interest in said twenty-acre tract, and in this respect the decree will be corrected so as to adjudge that appellants are the joint owners of said tract, each owning a one-tenth interest therein, subject to the judgment liens established by the decree.

The same is true as to the lands described as the east half of the northwest quarter (except the east half of the east half...