Ezzell v. Brown , 121 Ala. 150 ( 1898 )

TYSON, J.

— The bill in this cause was filed for the purpose of correcting a misdescription of lands sought and intended to be conveyed by the deed from complainant’s husband to her and to enjoin the prosecution of an action of ejectment brought by the appellant to recover-them.

The bill avers that the correct description of the lands is north fractional half of section 35, T. 6, R. 13 in Franklin county, Alabama, Avhile the description in the deed was by mistake written as “the fractional half of section 35, T. 6, R. 13 west.” Section 35, T. 6, R. 13 in Franklin county is a fractional section containing only 368.21 acres, lying east of the Chickasaw boundary line.

The first contention of appellant, respondent in the court below is, that the description in the bill is indefinite, because it fails to locate the lands east or west of the Chickasaw boundary line. The lands west of this line are no part of section 35. And they are not described in the government survey by section, townships and ranges. ■ The description in the bill of the land is sufficiently definite and certain.

All the material averments of the bill are expressly admitted by the answer and the complainant was not therefore compelled to resort to testimony to establish her case as made by her bill.

The croSs-bill sought to have the deed proposed to be executed to complainant by her husband declared fraudulent against the respondent as a creditor of the grantee’s husband. ' To this end it is alleged that the recited consideration in the deed sought by the complainant to be corrected was simulated and fictitious. The only allegation of indebtedness by complainant’s husband to the complainant in the cross-bill is that he executed and delivered his promissory note to one John T. Ezzell, dated March 20, 1893, due December 25th, 1893, and transferred to the complainant on the 6th day of October, 1894, for fifty dollars; and reduction of the note to judgment before a justice of the peace, issue of execution, levy of execution upon these lands, order of sale of the lands on motion in-the circuit court and deed by sheriff to the complainant in the cross-bill. The note and written transfer thereof were made exhibits to-the cross-bill. The answer of complainant in the original bill to the cross-bill denies the averments of the cross-bill.

The cause was submitted upon original bill and exhibits thereto, answer to cross-bill, decree pro confesso against complainant’s husband, answer and cross-bill and exhibit thereto, for final decree. A transcript of the judgment, as alleged in the cross-bill, by the justice of the peace upon the note was not an exhibit to the bill or cross-bill. • In fact the only exhibit to the cross-bill was the note and its transfer. There was no evidence offered to prove the execution of the note and none to prove the existence of the debt it purported to evidence. Certainly the note as against the complainant was not competent evidence without proof of its execution, nor were its recitals evidence of any debt against her, she being a stranger to the transaction.—Garrett v. Garrett, 64 Ala. 263.

There being no proof that complainant in the cross-bill was a creditor prior to the execution of the deed assailed, the burden of proof was never shifted to the complainant in the original bill to prove the bona fides of the consideration expressed in the deed from her husband to her.—Smith v. Collins & Griffeth, 94 Ala. 394; Chipman v. Glennon, 98 Ala. 263; Mobile Savings Bank v. McDonnell, 89 Ala. 434. As between her and her husband the consideration recited in the deed was conclusive as to its character, and could not have been shown by him to have been other and different than as expressed, though as against his creditors, it may have b.een shown by them to have been simulated or the deed to have been a voluntary conveyance. In other words as between the creditors of the grantor when such relation is proven to have existed, and the complainant, the consideration recited in the deed is not evidence of its existence, but must be proven by independent competent evidence.—Houston v. Blackman, 66 Ala. 562 and authorities there cited.

The complainant in the cross-bill as purchaser cannot invoke' the- doctrine of bona fide purchaser for value, without notice. The rule of caveat emptor applies to judicial sales.-Goodbar, White & Co. v. Daniel, 88 Ala. 588; Thomas v. Glazener, 90 Ala. 588; Lindsay v. Cooper, 94 Ala. 170; Clemmons et al. v. Cox, 114 Ala. 350.

There was no error in the decree of the chancellor dismissing the cross-bill and granting the relief prayed for in the original bill. .

■ Affirmed.