Petty v. Hall

57 So. 2d 620, 257 Ala. 145, 1952 Ala. LEXIS 164

• Court: Supreme Court of Alabama
• Decided: March 13, 1952
• Docket: 1 Div. 473
• Status: Published

Opinions

PER CURIAM.

The right to rescind, which the grantor has in a conveyance subject to the terms of § 15, Title 20, Code of 1940, is a personal right, not a property right, and is not transferable until the grantor has elected to rescind during his lifetime and has taken proceedings in equity to annul the conveyance. But when he has done that in his lifetime, the right ceases to be personal and thereby becomes property. It has been held by this Court that when suc-h a grantor has a proceeding in equity to annul the conveyance and dies before there is a final decree in that cause, the right descends to his heirs. and they may revive it in their name and prosecute it to a conclusion. Heartsill et ux. v. Thompson, 245 Ala. 215, 16 So.2d 507; Bobie v. Moss, 246 Ala. 559, 21 So.2d 680; Hughes v. Duke, 251 Ala. 220, 36 So.2d 300.

It necessarily results from that situation that the grantor having elected to rescind and having a suit pending in equity to effect a rescission, has such a property right as may be conveyed by that grantor in his lifetime. The rescission and cancellation become effective as of the date.of the election, manifested by filing the bill in equity. The subsequent decree in the cause annulling the deed relates back to the filing of the bill. Therefore the grantor may at any time, after filing the bill, convey the property or contract to convey it, or make such other disposition of it as is authorized by law, the same as if the deed sought to be .cancelled had never been executed. And if pending that suit, the grantor being the sole complainant in the cause conveys the land to a third person, that third person occupies the status which obtains with respect to any other suit in equity by a complainant seeking to recover the land, and in order to do so to push aside an obstacle in the way of it.

When that status arises the purchaser has the right to intervene in the suit in. equity and make himself a party in order to have his rights determined, using the name of his grantor. Gipson v. Hyatt, 243 Ala. 118, 8 So.2d 926; Vaughn v. Brue, 245 Ala. 107, 16 So.2d 17, 150 A.L.R. 668.

Upon the basis of that reasoning, one who, pending such a suit, makes a valid contract with the grantor for the purchase of the property or acquires from him a mortgage or lien upon it, has a right which is enforcible by him, and in order to protect it he may intervene in the suit to see that it is prosecuted to a successful conclusion. The grantor, complainant in such a suit, has no right to defeat the legal or equitable claim of such purchaser which he caused to be created by dismissing the suit after he conferred such rights upon the other.

That is the status of those who seek to intervene as complainants in this cause and who seek to prevent the original complainant and grantor from dismissing this suit after he has conferred upon the intervenors property rights which are en-forcible in equity. Therefore these intervenors should not be excluded from participating in the suit.

The decree of the trial court overruling demurrer to the petition for intervention is consistent with these views and it is affirmed.

Affirmed.

LIVINGSTON, C. J., and FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. BROWN, J., dissents.