Newman, Lazarus v. (La.). 331 Roberts v. State (Ala.). 741 New Orleans City R. Co., Campbell v. La.) New Orleans & C. R. Co., Weber v. (La.) 892 Roman, Baldwin v. (Ala.). 985 212 Roberts, State v. (Ala.). 744 Robinson, Highland Ave. & B. R. Co. v. 21 311 Robinson, State v. (La.). 1002 Rogers v. State (Ala.). 619 40 111 Rooks v. Alabama & V. R. Co. (Miss.). 821 294 251 Rowe, Southwestern Building & Loan Ass'n v. (Ala.) 484 1012 Rushing v. McClendon (Ala.).. .1013 ... North American Trust Co. v. Lanier (Miss.) 804 Rushton v. Davis (Ala.). 476 Nunez v. Bayhi (La.). 31 349 Russell, Andrews v. (Ala.). St. Charles Hotel Co., Otis Mfg. Co. v. (La.) 182 350 St. Charles Hotel Co., Willey v. (La.)..... 182 487 St. Clair v. Kansas City, M. & B. R. Co. 23 (Miss.) 957 St. Landry State Bank v. Meyers (La.)... 136 St. Louis S. W. R. Co., Jackson v. (La.). 241 St. Paul, State ex rel. Bromade v. (La.).... 839 St. Paul, State ex rel. Guion v. (La.)... St. Paul, State ex rel. Hart v. (La.). 836 915 Reynolds v. Florida Cent. & P. R. Co. (Fla.) 861 Smith, Pearce v. (Ala.). 37 State, Rogers v. (Ala.).. State, Shaw v. (Ala.). 619 390 Stark, Central of Georgia R. Co. v. (Ala.).. 411 State, Sims v. (Miss.). State, Sledge v. (Ala.).. State, Smith v. (Fla.)... 762 State, Starkey v. (Ala.). 752 State, Stewart v. (Fla.).. 356 State, Stewart v. (Fla.). 745 State, Thomas v. (Ala.). 781 State, Washington v. (Ala.). 917 State, Washington v. (Miss.). 879 State, West v. (Fla.). 898 State, Whitley v. (Miss.). 819 .... .1013 .1013 919 758 .1013 56 815 591 78 850 430 852 State v. Napoleon (La.).. State v. Roberts (Ala.). State v. Robinson (La.).. 744 State ex rel. Bromade v. St. Paul (La.).... 839 .1002 State ex rel. Bulkley v. Whited & Wheless State v. Rosenstream (La.).. 294 State v. Southern Pac. Co. (La.). 372 State ex rel. Conrad v. City of New Orleans (La.) 116 State, Cunningham v. (Miss.). 399 State ex rel. Tisdale v. City of New Or833 leans (La.) 163 761 Steen v. Swadley (Ala.). 620 750 Steiner v. Atlanta Wooden-Ware Co. (Ala.) 527 697 Stewart v. British & American Mortg. Co. 617 (Ala.) .1013 ... 849 Stewart v. State (Fla.).. 656 Stewart v. State (Fla.). 580 Stewart. Feld v. (Miss.). 56 815 819 847 Stickney, Blunt v. (Ala.). .1010 406 Stiff v. Cobb (Ala.). 402 Union Cent. Life Ins. Co., Mills v. (Miss.).. 954 Union Marine Ins. Co., Camors v. (La.)... 926 United States, American Surety Co. of New York v. (Ala.).. 664 United States Life Ins. Co. v. Lesser (Ala.) 646 United States Life Ins. Co. v. Lesser (Ala.)..1014 United States Savings & Loan Co., Lindsay v. (Ala.) Untereiner v. Shepard (La.). Upton v. Times-Democrat Pub. Co. (La.)... 970 Wilson v. Alabama G. S. R. Co. (Miss.)... 567 .1014 665 Windham, Abercrombie v. (Ala.). Windham, Central of Georgia R. Co. v. (Ala.) 387 392 717 319 Wiscasset Mills, McInnis v. (Miss.). 725 741 454 Woodmen of the World v. Grace (Miss.). 832 736 824 Vandenburg, State v. (Miss.). Vandiver, Abercrombie v. (Ala.). 835 Woolley, Illinois Cent. R. Co. v. (Miss.).. 491 Wornum v. Gay (Ala.).. 26 .1014 Yazoo City Transp. Co. v. Smith (Miss.)... 807 956 959 992 984 THE SOUTHERN REPORTER. VOLUME 28. (126 Ala. 151) DIAL v. GAMBREL et al. (Supreme Court of Alabama. April 19, 1900.) REFORMATION OF INSTRUMENTS-FINAL DE CREE-IMPEACHMENT. Where petitioner in an action to reform a mortgage by correcting the description of the land himself made an error, and described land of his own instead of that of the mortgagor, and subsequently purchased his own land on a foreclosure of the mortgage as reformed, he cannot afterwards have the sale set aside for such mistake; for the decree reforming the mortgage and ordering a sale of the property was a final decree, which cannot be impeached by any party to the proceeding, except for fraud. Appeal from chancery court, Sumter county; Thomas H. Smith, Chancellor. Petition by John Dial against Ann Gambrel and others to have a sale of property on foreclosure of a mortgage set aside. From a decree in favor of defendants, plaintiff appeals. Affirmed. The complainant, John Dial, filed a petition, addressed to the chancellor, which averred the following facts: One Dewitt sold to Gambrel the N. 2 of the S. E. 4 of section 11, township 18, range 4 E., and on March 9, 1886, executed to said Gambrel a deed in which the lands were, by mistake, described as the N. 1⁄2 of the N. E. 4 of said section 11. Gambrel, however, went immediately into possession of the N. 1⁄2 of the S. E. 4 of section 11. On March 16, 1892, Gambrel borrowed money from the petitioner, John Dial, and agreed to give him a mortgage on the N. W. 4 of the S. E. 4 of said section 11; but, in the mortgage executed, the land included therein was described in so uncertain and unintelligible a way as that, upon the mortgage debt not being paid, John Dial filed a bill asking for a reformation and correction of the description, and that the mortgage be foreclosed. In this bill the misdescription of the mortgage from Gambrel was asked to be corrected so as to describe the lands conveyed in said mortgage as the N. W. 4 of the N. E. 4 of said section 11. From a decree in this suit an appeal was taken to the supreme court, and in this court a decree was rendered reforming the mort28 So.-1 gage, and describing the lands, as prayed for in said bill, as the N. W. 4 of the N. E. of said section 11. The cause was then remanded for further proceedings in the chancery court. There was then a decree rendered by the chancellor, granting the prayer of foreclosure, and granting an order to the register to ascertain the amount of the mortgage debt. There then followed the report of the register, and an order of sale. At this sale John Dial, who was the complainant in said bill and the mortgagee, became the purchaser. The sale was reported to the chancery court, was confirmed, and a deed was made to the purchaser of said lands as described, and a deed was made by the register to John Dial, the purchaser. There was also an execution issued out of the chancery court for certain unpaid costs which had been taxed against the defendants in said suit, and the sheriff levied said execution upon the N. E. 14 of the N. E. 4 of said section 11, as the property of the defendants to said suit. Under this levy the lands were sold, and bought by said Dial, to whom the sheriff executed a deed thereto. It is averred in the petition that, in having the description of the lands as contained in the mortgage corrected, the complainant in the chancery suit was deceived and misled by the mistake which Dewitt had made in his deed to Gambrel, and had the description corrected so as to inIclude in the lands which Dewitt sold to Gambrel the lands which were already owned by the complainant. The petition then continued as follows: "That all parties interested and concerned in the transactions connected with said land have been mistaken in its identity; that neither said Dewitt nor said Gambrel ever owned, claimed, or occupied the N. 1⁄2 of the N. E. 14 of Sec. 11, T. 18, R. 4 west, or any part thereof, but the said Dewitt surrendered possession of the N. 1⁄2 of the S. E. 14 of said section to the said Gambrel, who has held and occupied the same since the date of said deed. In point of fact, the N. 1⁄2 of the N. E. 4 of said section had belonged to petitioner for nearly twenty years, under a valid deed, without any adverse claim of ownership whatever. Peti tioner further alleges that neither he, said Dewitt, nor said Gambrel, nor any of the solicitors interested in said proceedings, knew or had any intimation of the erroneous description of the lands embraced in the proceedings mentioned; and petitioner, having paid the purchase money of said land to the said register as aforesaid, respectfully prays this court to set aside sale, and instruct said register to return the purchase money to the said petitioner, and declare the decree in favor of the complainant and petitioner unsatisfied, and for all such other and further relief as to your honor may seem meet and proper." After making the averments as to the lands purchased at the execution sale, the petition then continued as follows: "That he is entirely an unlearned man, neither able to read or write, and could not tell the description of his own lands. Petitioner asks your honor to set aside said sale, declare the said execution unsatisfied, and direct the return of the purchase money to the purchaser, the petitioner, and for all such other and further relief as he may be entitled to." Upon the hearing of the petition the chancellor denied it. From this decree the petitioner appeals, and assigns the rendition thereof as error. McEachin, Smith & Harkness, for appellant. J. J. Altman, for appellees. TYSON, J. The decree rendered by this court on the 29th day of October, 1898, reforming the mortgage held by complainant so as to correctly describe the land conveyed by it, and ordering its foreclosure as reformed, and further adjudging that complainant has a lien upon the land, and condemning it to be sold for the satisfaction of the debt secured by the mortgage, was a final decree. The term of the court having passed at which that decree was rendered, this court, upon application to it, would be without power to alter, vary, or annul it, except for the mere correction of clerical errors or omissions, or for fraud. 3 Brick. Dig. p. 32, § 79. The decree being final and conclusive, the solemn adjudication that the lands described in it were the property of the mortgagor can never afterwards be contradicted or otherwise impeached or impaired by any party to the cause, except for fraud. Nor can a purchaser at the foreclosure sale of the land be heard to say that they were not the property of the mortgagor, but were his own. The petition filed by the complainant, who by his bill invoked and procured this decree, seeks to set aside the sale at which he became the purchaser of the land. By this petition he proceeds, by its averments, to deny that the land was the property of the mortgagor, and seeks to have the sale and purchase by him set aside solely upon the ground that the lands condemned, and which he bought, were in fact his own. He alleges no fraud, but predicates his right to impeach the solemn recitals of the decree upon his ignorance of land numbers. If the averments of his petition be true, he has made the unfortunate mistake of having taken a mortgage upon his own land. And this is not all. He has procured the court to decree a lien upon his own land, as being the land of the mortgagor, and to sell it as the land of his mortgagor. And yet we are not at the end of the chapter. He purchases this same land at the foreclosure sale, and also a portion of his own lands, under an execution issued out of this court for the costs adjudged against his mortgagor, who was the appellee in the cause in which the decree was rendered by this court in his favor. It is almost inconceivable how so many mistakes could have been made by him. But they seem to have been made. But, whether made or not, he cannot be permitted to attack the conclusiveness of the decree in the mode here attempted. The chancellor did not err in dismissing his petition. Affirmed. 1. A building and loan association, in the absence of legislative prohibition, and in accordance with its by-laws, may issue paid-up stock, though its charter contains no express authority therefor. 2. Where complainant became a stockholder in a building and loan association, with notice that a certain kind of stock was authorized by the by-laws, he cannot, in equity, have his contract of subscription annulled because of the issuance of such stock. 3. A representation that building and loan association stock would be worth par in a certain time, though false, was no ground for the avoidance of a contract of stock subscription, since the representation related to a matter equally open to both parties. 4. An agreement by a member to pay a building and loan association certain dues and assessments and a legal rate of interest on a loan is not usurious. 5. A stockholder cannot maintain a suit against the corporation attacking the issuance of certain stock as being in excess of corporate authority until he has done all in his power within the corporation to redress the wrong complained of. 6. Where there is no dispute as to the amount of a loan made by a building and loan association to a member, nor as to the payments made thereon by him, a bill for an accounting will not lie against the association. Appeal from city court of Gadsden; John H. Disque, Judge. Bill by Thomas L. Johnson against National Building & Loan Association. From a decree in favor of defendant sustaining a demurrer, complainant appeals. Affirmed. From a decree in favor of complainant overruling a motion to dismiss the bill and dissolve an injunction, defendant prosecutes a cross appeal. Reversed. |