Sullivan v. McLaughlin

• Decision Date: 27 July 1892
• Citation: 11 So. 447,99 Ala. 60
• Parties: SULLIVAN ET AL. v. MCLAUGHLIN ET AL.
• Court: Alabama Supreme Court

11 So. 447

99 Ala. 60

SULLIVAN ET AL. v. MCLAUGHLIN ET AL.

Supreme Court of Alabama

July 27, 1892

Appeal from chancery court, St. Clair county; L. K. MCSPADDEN Chancellor.

Bill in equity by Melissa D. Sullivan and others against James M McLaughlin and others. The bill alleges substantially that on March 8, 1880, Wesley Goodwin and his wife, Melissa D Goodwin, executed to James McLaughlin and W. S. Forman, as administrators of the estate of James Forman, deceased, a mortgage for $1,000, to secure the purchase money for the land therein described, said mortgage being due and payable October 1, 1882; that in 1880 or 1881 said Wesley Goodwin paid on said mortgage debt $90; that afterwards, on January 5, 1881, the said Wesley Goodwin executed a deed of conveyance to said land to "Melissa D. Goodwin and the heirs of her body by myself as husband." The bill further alleges that in May, 1881, Wesley Goodwin died intestate, leaving surviving him his wife, Melissa D Goodwin, and their children, Nelson Goodwin, Tally Goodwin, Leander Goodwin, and Laura Keith, which children were in existence at the time the said deed was executed by Wesley Goodwin, on January 5, 1881, and that they are the only children Wesley Goodwin had by his wife, Melissa Goodwin, and the bill avers that the said Melissa Goodwin and the said children are the grantees in said deed. The bill then avers that in December, 1881, McLaughlin and Forman demanded and took possession of the land as mortgagees, and that in January, 1882, they advertised the land for sale as provided in the mortgage, and on February 3, 1882, sold it to John Keith. It is then further averred that John Keith held possession of the land until February, 1887, when he sold the same to T. T. Scott, who is now in possession. Melissa D. Goodwin, who is now Melissa D. Sullivan, and the above-mentioned children of her and the said Wesley Goodwin, deceased, complainants, seek to have the sale made by the administrators on February 3, 1882, declared null and void, and that the rents of the said premises be applied to the amount ascertained to be due upon the mortgage debt, and that upon the payment by complainants of any other amount which may be found to be due thereon said mortgage be annulled and removed as a cloud upon complainants' title. The said administrators and the heirs at law of James Forman, deceased, and the said John Keith and T. T. Scott, are made parties defendant. All of defendants except T. T. Scott joined in a demurrer to the bill, and assigned the following grounds: (1) That complainants have a plain and adequate remedy at law; (2) that there is no equity in the bill, because complainants show therein that the land was sold by the administrators under a power of sale contained in the mortgage, and that more than two years have elapsed since the sale; (3, 4) that complainants fail to show that they have any present interest or estate in the land; (5) that they fail to aver or show that defendants James M. McLaughlin and W.S. Forman, as administrators of the estate of James Forman, deceased, or otherwise, had any lawful authority to sell the land, so as to invest Wesley Goodwin, under whom complainants claim, with any title to it; (6) that complainants show by their bill that the title to the land has never in any lawful or equitable way been divested out of the heirs of James Forman, deceased; (7) that complainants fail to aver or show when the first note mentioned in the mortgage fell due; (8) that the bill fails to show that no default was made by Wesley Goodwin, or those claiming under him, in the payment of the first note mentioned, or before the sale by the mortgagees on February 3, 1882; (9) that the bill fails to show that there was no such default made in the payment of the mortgage debt or any part thereof, prior to February, 1882, as would authorize the mortgagees, McLaughlin and Forman, to foreclose such mortgage; (10) the bill fails to show that the sale made by the mortgagees on February 3, 1882, was not binding and valid under the terms of the mortgage; (11) there is misjoinder in the parties complainant because said Laura E. Keith, Nelson Goodwin, Tally Goodwin, and Leander Goodwin are not proper parties complainant to this suit; (12) because the bill does not show that the above-mentioned children of Wesley and Melissa Goodwin are proper parties complainant to this suit; (13) that the bill shows that the said Melissa D. Sullivan is the only proper party complainant to this suit; and (14) there is a misjoinder of parties defendant to this suit in this: that the children of James Forman, deceased, are not proper parties defendant. The defendant, T. T. Scott demurred to the bill on the following ground: "That it appears from and by the bill that the complainants Laura E. Keith, Nelson Goodwin, Tally Goodwin, and Leander Goodwin have no interest in the matter in controversy, and are improper parties in this suit." The demurrer of the defendant Scott was sustained, as were also the 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, and 13th grounds of demurrer interposed by the other defendants, their 1st, 2d, 3d, 4th, and 14th grounds of demurrer being overruled. Complainants appeal. Reversed.

M. M. Smith, for appellants.

John W. Inzer, for appellees.

THORINGTON J.

The bill in this case seeks to charge mortgagees in possession with rents, which it alleged are equal in amount to the mortgage debt, and to have the mortgage satisfied from such rents, and canceled as a cloud on complainants' title and there is an offer in the bill to pay any balance of the mortgage debts if the rents should prove insufficient for that purpose. The principal question for the decision of this court involves the construction of a deed made by Wesley Goodwin, January 11, 1881, to his wife and children, who are the complainants, and filed the bill after his death. The deed, in consideration of natural love and affection, conveys unto "the said Melissa Goodwin, and the heirs of her body by myself as husband, the following described property," being the same set forth in the bill. The habendum and tenendum clause of the deed is as follows, to wit: "To have and to hold to the said Melissa Goodwin, and the heirs of her body by myself as husband, and to her assigns, in the right and for the interest of her said heirs as aforesaid, hereby especially excluding all and every rights of inheritance or other rights of the heirs of Melissa D. Goodwin by any person or persons other than myself." By an amendment to the bill it is averred that Wesley Goodwin, the grantor, was, at the date of the deed, in declining health; that the property conveyed constituted substantially all the property he then owned; that his wife, one of the grantees, then had living children by a former husband; and that Wesley Goodwin's desire and intention in executing the deed was to provide for his wife and his own children by her; and that the words in the deed, "heirs of her body by myself as husband," were so used "to show that all other heirs and children of his said wife were excluded from taking or holding any interest in said lands under or by virtue of said deed;" that it was the grantor's intention to convey said property by said deed to his wife and children jointly, and "the draughtsman thereof inadvertently used in said deed the term 'heirs of her body by him as husband,' instead of 'her children by him;"' that said grantor was illiterate and unlearned in legal terms, and, not knowing the effect of the...