Cain v. Gimon , 36 Ala. 168 ( 1860 )

STONE, J.

In Blackwell v. Blackwell, 33 Ala. 57, we said, “All amendments, which are properly allowed, take effect, so far as the equity of the bill is concerned, as of the date of the original bill.” So, if the amendment was properly allowed, and the bill as amended' contains equity, it should not have been dismissed for any defect in the original bill.

[2.] It is contended, however, that the amendment makes a new case, and should not have been allowed. In Ingraham v. Foster, 31 Ala. 123, we considered this question, and held that, “ to make an amendment improper, it is not enough that there be a mere inconsistency or repugnancy of allegation. There must be an inconsistency or repugnancy in the purposes of the bill, as contradistinguished from the modification of the relief. One of the purposes of a chancery amendment is to correct an erroneous statement of the facts.” To the same effect is Blackwell v. Blackwell, supra. The amendment in this ease was allowable, and-it does not make a new case.

[3.] It is further urged against the relief sought in this case, that -.Mrs. Cain, not being a party to the trust deed from Cain to Lassabe for the benefit of Gimon, can not object to any irregularity in the sale. Brown v. Lipscomb, (9 Porter, 472,) Foster v. Goree, (5 Ala. 424,) Gary v. Colgin, (11 ib. 514,) and Herbert v. Hanrick, (16 ib. 581,) are cited in support of this position. In each of these cases, the question arose in actions at law; and in each case, the attempt was made, in a collateral proceeding, to pronounce the title defective. There is a marked distinction between the cases cited and the one we are considering. The deed executed by Mr. Cain to Provost, in trust for the sole use and .benefit of Mrs. Cain, though voluntary, had the effect of conveying away all the interest which Mrs. Cain had’in the lot. This interest, as against Gimon,.and Lassabe his trustee, was an equity of redemption. Then, Mrs. Cain, the complainant, succeeded in equity to all the rights which had remained in her husband. One of those clear rights was, to pay off the mortgage debt, and redeem the land. The bill alleges, that the mortgage debt was nearly or quite paid; and that Gimon, by concealing the true state of the account, and falsely stating it, perpetrated a fraud on complainant, and procured the land to be sold under a pretended debt, much larger than the real liability. The bill further charges, in-effect, that Gimon was the real purchaser at the trust sale. The fraud charged in the bill, if admitted or proved, is sufficient to set aside the sale — made, as it is charged, to the beneficiary — and to let in Mrs. Cain to redeem.

[4.] The, amended bill contains a sufficient tender in eases.like-this. — Nelson v. Dunn, 15 Ala. 501; Billingslea v. Ware, 32 ib. 415.

[5.] The bill, as it is amended, offers a sufficient excuse for the delay in filing the bill, and for accepting a lease under Mr. Gimon. — Shelton v. Carroll, 16 Ala. 148, 153.

[6.] Under our decisions, Mrs. Cain can not make the defense of usury, that being a personal defense. — See Cook v. Dyer, 3 Ala. 643; Sayre v. Fenno, ib. 458; Harbinson v. Harrell, 19 ib. 753; Gray v. Brown, 22 ib. 262.

In the preparation of this opinion, we have considered •only tbe averments of the bill and amendments. The proof may fall far short of sustaining them. .

Decree of the chancellor reversed, and cause remanded.