Davidson v. Brown

*208 This case having been submitted under Supreme Court rule 46, the opinion of the court was prepared by Mr. Justice SOMERVILLE'. As we understand the bill of complaint, it presents two grounds as bases for relief: (1) Respondent’s fraudulent misrepresentations as to the nature of the instrument which he induced complainant to execute; and (2) respondent’s fraudulent misrepresentations as to the mortgage incumbrance on his own lot. On the first ground — the instrument being a legal nullity — complainant would be entitled to relief by cancellation only upon a showing that she was in possession of the lot at the time of filing suit. Smith v. Roney, 182 Ala. 540, 62 So. 753; Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578; Brown v. Hunter, 121 Ala. 210, 25 So. 924. But on the second ground — the fraud going to the consideration and inducement only, and the instrument being voidable merely— equity will intervene to declare a rescission of the contract and the surrender and cancellation of the deed, or a reconveyance of the property, regardless of complainant’s want of possession. Shipman v. Furniss, 69 Ala. 555, 562, 563, 44 Am. Rep. 528; Hafer v. Cole, 176 Ala. 242, 249, 57 So. 757; Baker v. Maxwell, 99 Ala. 558, 14 So. 468. In such a case there is no remedy by ejectment at law, because fraud not going to the execution of the deed, as by misreading it to- the grantee, or misrepresenting its contents, or the like, is not available in a court of law to nullify the deed, and rescission by the vendor, though effective in other respects, does not revest in him the title to land once fully vested in the purchaser. Swift v. Fitzhugh, 9 Port. 39, 63, 64; Mordecai v. Tankersly, 1 Ala. 100; Giles v. Williams, 3 Ala. 316, 317, 37 Am. Dec. 692; Costillo v. Thompson, 9 Ala. 937, 946; Thompson v. Drake, 32 Ala. 99, 103; 18 Corp. Jur. “Deeds,” 227, 228, § 147, citing numerous authorities. This principle seems to have been recognized in Brown v. Hunter, 121 Ala. 210, 212, 25 So. 924, where the foregoing cases are cited. Doubtless it has been lost sight of in some of our numerous decisions affirming the general rule that equity will not take jurisdiction to cancel a cloud on title unless the complainant shows that he is in possession of the land, but it has never been denied, so far as we are advised. The bill in this case does in fact allege possession in the complainant, and, incidental to the relief prayed by cancellation, it seeks to quiet the title in the manner of the statutory jurisdiction to that end. As a bill in the latter aspect, it is defective in not alleging a “peaceable” possession in complainant; but no objection was taken to the bill as for | ' misjoinder of causes, or for defective allegation as to any aspect of right or remedy. This operated, of course, as a waiver of such objections (Penny v. B. & A. Mortgage Co., 132 Ala. 357, 31 So. 96; Smith v. Roney, 182 Ala. 540, 62 So. 753; Bruce Coal Co. v. Bibby, 201 Ala. 121, 123, 77 So. 545; Hyman v. Langston, 210 Ala. 509, 511, 98 So. 564), and the court was authorized to grant any appropriate relief within the allegations and prayers of the Bill, if the evidence justified it. The burden of proof was of course on the complainant to establish her charges of fraud, -or one of them. Conceding, for the argument, that 'she failed to convincingly establish fraud in the execution of the deed, and that she had not the possession of the land at the time her bill was filed, we are clear in the conclusion that she was intentionally deceived by the respondent as to the mortgage incumbrance on his own property, offered to her in exchange fot the lot she conveyed to him, and that this deception as to the nature and. value of the consideration that induced her conveyance entitled her to a rescission of the contract of exchange, under the general prayer of the bill, and, incidentally, to the otiier relief specially prayed. In his answer the respondent sets up, as an estoppel against complainant’s right to relief, the facts that he delivered his deed to her, that she accepted it, and that thereafter, by reason of her failure to pay the mortgage debt — he believing that she had undertaken to do so — his property was lost by the foreclosure of the mortgage and the lapse of the redemption period. However, the undisputed evidence is that complainant did not accept respondent’s deed, but promptly rejected it, refused to go on with the deal, and never asserted any claim to the property it purported to convey or exercised any ownership over it in any way. This rejection and refusal were made known to Davis, who was respondent’s agent for the purpose of delivering the deed; and notice thereof to Davis was notice to respondent, as a matter of law. The asserted estoppel was therefore properly denied. On the allegations of the bill, there was no occasion for an offer to do equity by complainant. It is insisted, however, that upon the filing of respondent’s answer, asserting his payment of “a large part” of the municipal assessments that had accrued on complainant’s lot, it was incumbent on her to amend her bill by adding thereto an offer to do equity in the premises. The answer does not aver that these payments were made before the filing of the bill of complaint. But, conceding the merit of respondent’s contention, he failed to incorporate in his answer, before final submission, a demurrer pointing out that defect in the bill, if such it was, thereby waiving the defect. Hyman v. Langs- *209 ton, 210 Ala. 509, 511, 98 So. 564. And, furthermore, the decree of the court gave to respondent the full benefit of his asserted equity by requiring complainant to pay into court for him the full amount of his payments, and complainant has submitted to that decree. Hence respondent has nothing to complain of in that respect. It was the province of the court having jurisdiction of the cause to do full equity between the parties, and that part of the decree ordering respondent to execute a quitclaim deed to complainant conveying to her such interest in her lot as he acquired by purchase from the city of Birmingham, on account of defaulted municipal assessments, that being germane and incidental to the main relief decreed, was proper. The statute (Code 1923, § 6524), provides that “if real estate be the subject-matter of the suit” it may be brought “in the county where the same, or a material portion thereof is situated.” This suit was therefore properly brought in Jefferson county, where the land involved is situated. City Loan, etc., Co. v. Poole, 149 Ala. 164, 43 So. 13. But, in any ease, the question of venue, to be available, must be raised seasonably by plea in the trial court, and it was not so raised in this case. White v. White, 206 Ala. 231, 89 So. 579. Other objections are made to the decree, but they are so manifestly without merit as to justify pretermission of special notice. We find no error calling for correction, and the decree will accordingly be affirmed. Affirmed. ANDERSON, O. J., and THOMAS, and BOÜLDIN, JJ., concur.