Lester v. Johnston

DOWDELL, J. The motion to strike the plea of the respondent, Carleton, on the ground that the same was filed without first having obtained leave to file, was a matter resting in the discretion of the chancellor, and his refusal1 to strike is not reviewable on appeal. These complainants claim under the mortgage which was executed jointly by Mrs. Johnston and her son, having purchased at the foreclosure sale. The mortgage, which is made an exhibit to the bill, conveys the property as the joint property of the mortgagors. The deed from Tom Johnston to- the respondents shows a joint ownership, in thetm, and the evidence shows a joint possession by them. There is no merit in the contention of complainants that Mrs. Johnston’s possession was adverse to that of her son. The purpose of the bill is to reform *a misdescription of the land conveyed. In such a case it is not necessary to aver a prior request, and refusal to correct, where the facts alleged in the bill show that a request to correct would have been vain and useless.- — Robbins v. Battle House Co., 74 Ala., 499; Weathers v. Hill. 92 Ala. 492. The bill avers that possession of the land was demanded of the respondents and that they refused to give possession. This allegation as to the respondent. Johnston is taken as confessed on the decree pro eonfesso ag’ainst her. It is not to be supposed, [199] when they refuse on demand to deliver the possession of the property, that upon a request by the complainants the respondents would consent to a correction of a misdescription of the property in the deed, thereby the better enabling the complainants to dispossess them at law. Tt was upon the failure of the bill to aver a request and refusal to reform, that the chancellor dismissed it, -and in doing so he Avas in error. We think the evidence sustains the plea of Oarleton as to his homestead. The mortgage not having been joined in by his wife in the manner provided by the statute for the coiwevance of the homestead by a married man, is Amid as to him. But the cdnrplainants are entitled to have the misdescription of the land corrected, and to have the relief sought by the bill as to Mrs. Johnston’s interest in. the land. The cause having been submitted for final decree on the pleadings and proof, the decree of the chancellor will he reversed, and one Avill he here rendered granting the relief prayed for as against Mrs. Johnston, but dismissing the bill as to the defendant, Oarleton. Reversed and rendered.