Union Cemetery Co. v. Jackson

Decision Date14 May 1914
Docket Number739
PartiesUNION CEMETERY CO. v. JACKSON et al.
CourtAlabama Supreme Court

On Rehearing, June 30, 1914

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by the Union Cemetery Company against R.T. Jackson and others. From a decree sustaining a demurrer to the bill, complainant appeals. Affirmed.

W.S Burrows, of Birmingham, for appellant.

Carmichael & Wynn, of Birmingham, for appellees.

McCLELLAN J.

This amended bill, filed by appellant (a corporation) against appellees, seeks the rescission of a contract of purchase of land, the restoration of the parties to the status quo, and the cancellation of the conveyance made to the corporation. The other theory of the amended bill, which appellant would seem to assert as an alternative, contemplates a reformation of the conveyance. But this theory is rendered impossible of sanction by the averment of the amended bill whereby the absence of title in the grantors is affirmed. This appeal is from the decree sustaining demurrer to the bill as last amended.

The basis of complainant's claim for relief is misrepresentation in respect of one boundary of a plat of land containing one acre. Complainant was and is the proprietor of an area devoted to cemetery purposes. In order to improve the means of ingress and egress therefrom, the company desired to extend its holdings so as to afford a way into the burial ground from a nearby public road, which ran approximately 350 feet from the company's land. Dinkins since ceased, and Jackson, Dinkins' brother-in-law, owned, as we must interpret the bill, an acre of land lying between the company's property and the public road to which the company desired to approach from its land. It is averred in the bill that, when fully advised of the company's purpose to secure approach to the public road, the grantors falsely represented, as a fact, that their property would, if purchased by the company, afford the desired means of way from the public road to the company's property; that the grantors' land extended from the cemetery property to the public road. It is further averred that the fact that the acre really owned by the grantors was under fence with an additional area that extended toward the public road contributed to emphasize the company's right to rely upon the aforesaid representations of the grantors; the company being ignorant in respect thereto. But these averments appear in the amended bill:

"And complainant further avers that at the time of the negotiations leading up to the making of said conveyance to it, or just prior thereto, and for the purpose of informing complainant as to their [grantors'] title in said tract, said Jackson and Dinkins furnished to complainant an abstract of title to said land with which a plat of said land was also exhibited and appended thereto, and was also furnished to complainant; and it avers that the said plat designated the said tract which was then about to be conveyed to complainant by them as being bounded by or extending up to and along the said public road on the east side of said road, or so very near thereto that by reason of the furnishing of said plat to complainant, and the said fence being along the eastern line or boundary of said road as aforesaid, and the statements contained in the said conveyance which was executed to complainant, and the representations therein contained, and the representations made to complainant by said Jackson and Dinkins at and prior to the time of said conveyance as aforesaid, that the land so conveyed, or which at that time was about to be conveyed, to complainant was bounded on the west side by a public road, the remaining of said fence along the boundary of said road as aforesaid, together with the fact that said land was undisturbed by any one claiming a title superior to the title of complainant or otherwise as aforesaid, all together lulled complainant into inactivity and the belief that further inquiry as to the true location of the western boundary line of the tract so conveyed was entirely unnecessary."

It is manifest that the alternative averment, which we have italicized, shows no more than that the plat, which was made for the particular purpose, and so accepted by complainant of advising and informing the complainant of the western boundary of said Dickins-Jackson plat, pictured that area as extending only very near to said public road, and by...

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10 cases
  • Veitch v. Woodward Iron Co.
    • United States
    • Alabama Supreme Court
    • May 10, 1917
    ... ... Sparks, 110 Ala. 572, 18 So. 45; Smith v ... Steiner, 172 Ala. 79, 55 So. 606; Jackson v ... Tribble, 156 Ala. 480, 47 So. 310; Johnson v ... Wood, 125 Ala. 330, 28 So. 454; ... will not be allowed to prejudice adversary interests ... Union Cemetery Co. v. Jackson, 188 Ala. 599, 65 So ... 986; James v. James, 55 Ala. 525. This ... ...
  • Patterson v. Weaver
    • United States
    • Alabama Supreme Court
    • April 14, 1927
    ...which will not be allowed to the prejudice of adverse interests. First Nat. Bank v. McIntosh, supra; James v. James, 55 Ala. 525; Union Co. v. Jackson, supra." also, Heflin v. Heflin, 208 Ala. 69, 74, 93 So. 719. It follows from the foregoing authorities that the bill was not filed after th......
  • American Federation of State, County and Municipal Emp. v. Dawkins
    • United States
    • Alabama Supreme Court
    • August 28, 1958
    ...Co., 229 Ala. 191, 155 So. 620; Lacy v. Fowler, 206 Ala. 679, 91 So. 593; Cudd v. Wood, 205 Ala. 682, 89 So. 52; Union Cemetery Co. v. Jackson, 188 Ala. 599, 65 So. 986; Shannon v. Long, 180 Ala. 128, 60 So. 273; Atlantic Coast Line R. Co. v. Woolfolk, 178 Ala. 190, 59 So. Applying this rul......
  • Heflin v. Heflin
    • United States
    • Alabama Supreme Court
    • June 8, 1922
    ... ... Haney v. Legg, supra; Butt v ... McAlpine, 167 Ala. 521, 52 So. 420; Union, etc., Co ... v. Jackson, 188 Ala. 599, 604, 65 So. 986. Where the ... equity of the case ... ...
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