57 Ala. 487 (Ala. 1877), Williams v. Bass

Citation:57 Ala. 487
Opinion Judge:MANNING, J.
Party Name:Williams, Birnie & Co. et al. v. Bass.
Attorney:JOHN M. CHILTON, for appellant. F. M. WOOD, SAMFORD & DOWDELL, contra.
Court:Supreme Court of Alabama

Page 487

57 Ala. 487 (Ala. 1877)

Williams, Birnie & Co. et al.

v.

Bass.

Supreme Court of Alabama

December Term, 1877

Bill in Equity to Enjoin sale of Land; to Annul a Conveyance, and to Enforce Vendor's Lien.

APPEAL from the Chancery Court of Lee.

Heard before the Hon. B. B. MCCRAW.

JOHN M. CHILTON, for appellant.

F. M. WOOD, SAMFORD & DOWDELL, contra.

MANNING, J.

Appellee, Mrs. Bass, a married woman, and complainant below in this cause, having lands belonging to her as her statutory separate estate, joined her husband, John G. Bass, in a conveyance of them to Messrs. Sledge & Smith, cotton commission merchants in Opelika, Alabama; and they, at the same time, made and delivered to her their promissory note for $7,920, payable some months afterwards, to Mrs. Bass, or bearer, on which she immediately indorsed a credit for $5,272. The note described the land for which it was given. This was on the 29th of July, 1872. On the second of September afterwards, a further credit thereon of $1,750 was indorsed on the note, and signed, "S. E. Bass, pr. J. G. Bass." No money was paid at the time of these indorsements. The conveyance was made, with the knowledge of Mrs. Bass, in compliance with an agreement made by her husband with Sledge & Smith, in discharge of an indebtedness he had incurred to them by losses in cotton speculations; and it was at the same time understood that Sledge & Smith would convey or mortgage the lands to Williams, Birnie & Co., of New York, through whom Sledge & Smith had negotiated the cotton transactions, and who had paid, and were paying, the losses thereby sustained. The lands were mortgaged September 11, 1872, to Williams, Birnie & Co., with a power in the mortgage to sell to pay the debt due on them. This mortgage being made to pay a debt previously contracted, they do not occupy the position of bona-fide purchasers for value without notice. All this is established by the evidence; and in her bill complainant says: "On information, believed to be true, oratrix states that at the time of the execution of said deed to Sledge & Smith, by said John G. Bass and oratrix, it was understood and agreed by and between John G. Bass and Sledge & Smith, that the aforesaid note, marked "Exhibit A," should not be paid in money, but the said land should be given for losses on cotton speculations; and by agreement with John G. Bass, said Sledge & Smith, at the time of the conveyance of said land, were not to pay money for the same, but were to be paid in oratrix's land." She does not anywhere say that she received this information after the...

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