Forman v. Thomas

80 So. 356, 202 Ala. 291, 1918 Ala. LEXIS 386

• Court: Supreme Court of Alabama
• Decided: November 21, 1918
• Docket: 2 Div. 663.
• Status: Published

Opinion

GARDNER. X

[1] The Dill in this case is filed to remove a cloud on complainant’s title to certain lands therein described, and we are of the opinion that it sufficiently shows the possession of complainant at the time the same was filed. The bill does not show that the complainant had received anything of ' value, and therefore there is no room for the application of the principle that one coming into equity, to avoid and have canceled a deed upon the ground of its imperfect execution as a conveyance of the homestead, will, as a condition to equitable interference, be required to refund, whatever of value he has received as a consideration therefor, as recognized in Loxley v. Douglas, 121 Ala. 575, 25 South. 998, and Walker v. Baker, 199 Ala. 310, 74 South. 368.

[2] This brings us to the consideration of the question of prime importance on this appeal. The bill avers that, at the time complainant signed her name to the instrument here sought to be canceled, it was entirely blank, except for a mere printed form, containing neither description of land, nor the name of a grantee; that complainant was induced to execute the same by the false representations of the husband of Gertrude Taylor.

In Barden v. Grace, 167 Ala. 453, 52 South. 425, Ann. Cas. 1912A, 537, a situation somewhat analogous to that here presented is found. It was there held that a deed without a grantee named therein is void, and further that subsequent innocent purchasers are not protected by such void deed — making a distinction between deeds that are absolutely void and those that are voidable merely. In our opinion the Barden Case was direct application here.

If complainant has been guilty of any conduct which would work an estoppel, or if there is anything that would afford any protection to an innocent purchaser, it clearly does not appear from the face of the bill; and the averments thereof, in our opinion bring the case squarely within the influence of the above cited authority.

Under these allegations, therefore, the respondent Forman is not protected as an innocent purchaser. The following authorities may also be cited in this connection: Note to Guthrie v. Field, 37 L. R. A. (N. S.) 326; Westlake v. Dunn, 184 Mass. 260, 68 N. E. 212, 100 Am. St. Rep. 557; note to Barden v. Grace, Ann. Cas. 1912A, 537; Allen v. Withrow, 110 U. S. 119, 3 Sup. Ct. 517, 28 L. Ed. 90; 13 Cyc. 591; note to Burgess v. Blake, 86 Am. St. Rep. 78; Hollis v. Harris, 96 Ala. 288, 11 South. 377; Pence v. Arbuckle, 22 Minn. 417; Taylor v. Davis, 72 Mo. 291.

We are of the opinion the demurrers to the bill were properly overruled, and the decree will be accordingly affirmed.

Affirmed.

ANDERSON, -O. J., and McCLELLAN and SAYRE, JJ., concur.