Foote v. Hambrick

Citations

• 70 Miss. 157

Syllabus

<p>1. Chancery Pleading. Inconsistent averments. Case.</p> <p>A bill to foreclose a mortgage, executed by a husband and wife, alleged that, by mistake, the deed embraced land not owned by the grantors, and that the husband altered the mortgage after its delivery by inserting the land intended; and further alleged “ that the whole transaction was between the complainant and the husband acting for himself and wife, except that the wife executed the papers after they were prepared.” Held, on demurrer by the wife, in the absence of any averment of ratification, that this exception, embracing the all-important step of the transaction, negatives the main allegation as to the husband’s agency in the whole transaction.</p> <p>2. Same. Alternative and inconsistent averments. Case.</p> <p>The bill further alleged “ that the defendant was either informed by her husband of the mistake, and its correction by him, and acquiesced therein, or she never had any information that any mistake had been made,” etc. Held, that this alternative averment, which must be taken as true on demurrer, excludes all idea of acquiescence in the alteration, since she could not acquiesce in that of which she had no knowledge.</p> <p>3. Alteration or Deed. Intent to correct mistake.</p> <p>The alteration by the mortgagee of the description of land in a mortgage, without the consent of the mortgagor, will not render the mortgage void, if done without any fraudulent intent, but only in the honest effort to correct a mistake, and conform it to the true intent. McJRaven v. Crisler, 53 Miss., 542.</p> <p>4. Unauthorized Alteration. Mistake. Description.</p> <p>Where a husband, having, jointly with his wife, executed a mortgage intended to include their homestead, and afterwards, without authority from her, but, in an honest effort to correct a mistake, inserted the homestead which had been omitted from the description, the mortgage, though not rendered invalid as to the other lands, is inoperative as to the