3 Div. 748.

87 So.2d 425 (1956)

Rose GARNETT v. Lucille TAUNTON.

Supreme Court of Alabama.

Attorney(s) appearing for the Case

Henry Heller, Montgomery, for appellant.

Knabe & Nachman, Montgomery, for appellee.

The bill alleges that complainant and Ocie Taunton, formerly husband and wife, during the time of their marriage, jointly owned the property involved, by virtue of a deed executed to them in 1951; that the parties were divorced in 1952; that in 1953 complainant executed a deed to the property to Ocie Taunton. It is alleged that this deed was in error and was intended by both complainant and Ocie Taunton to convey only such interest in the property as to give him an undivided one-half interest therein, each of said parties having by inadvertence overlooked the deed executed in 1951; that the deed of 1953 was executed by mutual mistake, both parties having understood at the time of its execution and thereafter that Ocie Taunton was to have only a half interest in the property, and the deed was merely intended to convey such interest, and that the property was to be owned thereafter by the two parties as tenants in common. It is further alleged that the deed of 1953 was upon the purported consideration of "$1.00 and love and affection", but the parties were not married at the time and that no consideration whatever was paid by Ocie Taunton; and that said deed was a nullity, being without consideration. It is further alleged that thereafter Ocie Taunton subsequently deeded the property to Rose Garnett; that Rose Garnett was not a bona fide purchaser for value as to one-half interest; that she paid no consideration for such deed to her, and knew at the time that complainant owned one-half interest in the property.

The prayer is that the deed of 1953 be declared a nullity and cancelled of record that the deed be set aside on ground of mutual mistake of complainant and Ocie Taunton; that, if mistaken in the relief prayed, said Ocie Taunton be decreed to hold one-half interest in the property in trust for complainant.

The demurrer, by both parties respondent, is to the bill and to each and every paragraph thereof. Respondent Garnett alone appeals.

SIMPSON, Justice.

This appeal is from an interlocutory decree overruling the demurrer to a bill in equity.

Appellant through her demurrer to the bill as a whole contends that there is no equity in the bill and that the trial court erred in overruling her demurrer.

In our view, the allegations of the bill are sufficient to invoke the jurisdiction of a court of equity for the cancellation of a deed on the ground of mutual mistake. Glenn v. City of Birmingham, 223 Ala. 501, 137 So. 292.

It results, therefore, that the demurrer was due to be overruled. Courington v. Kilgore, Ala., 84 So.2d 646; Stone Container Corp. v. Stapler, 263 Ala. 524, 83 So.2d 283; Wells v. Wells, 249 Ala. 649, 32 So.2d 697.

Appellant, present title holder of the land in the deed sought to be cancelled, and her predecessor grantor Ocie Taunton, were made parties defendant to the bill, but seemingly no relief was asked against appellant. Just why is not clear since she was properly made a party to the suit, the bill affirmatively showing that she is the present repository of the legal title to the real property. Hamm v. Bibb, 234 Ala. 192, 174 So. 634; Amann v. Burke, 237 Ala. 380, 186 So. 769; Silverstein v. First National Bank of Birmingham, 231 Ala. 565, 165 So. 827. However no ground made a proper challenge that no relief was asked against appellant and the bill is free of the challenge of want of equity since, as stated, appellant is a proper party.


LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur.


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