Albert v. Nixon

• Decision Date: 04 October 1934
• Docket Number: 8 Div. 592.
• Citation: 156 So. 775,229 Ala. 273
• Parties: ALBERT v. NIXON.
• Court: Alabama Supreme Court

156 So. 775

229 Ala. 273

ALBERT v. NIXON.

8 Div. 592.

Supreme Court of Alabama

October 4, 1934

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Bill for specific performance by Curtis Nixon against Effie M Albert, individually and as administratrix of the estate of F. B. Albert, deceased. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

J. A Lusk, of Guntersville, for appellant.

Claud D. Scruggs, of Guntersville, for appellee.

BROWN Justice.

This appeal is from an interlocutory decree overruling the defendant's demurrers to the bill. The bill is one for specific performance of a contract, and is filed by one of the parties to the contract against the personal representative of the other party, since deceased, and the wife of said deceased party.

The bill, to state the substance of its averments in short alleges that said deceased party, F. B. Albert, being the owner of certain lands in Marshall county on which he had executed a certain mortgage to the First Joint Stock Land Bank of Montgomery, Ala., to secure an indebtedness of $4,500, payable in installments running through a period of several years, sold and conveyed to the complainant, Curtis Nixon, a portion of said land consisting of 90 acres, for a consideration of $1,105, paid in cash, Albert's wife Mrs. Effie M. Albert, joining in the execution of said conveyance; that said deed, though bearing date of January 21, 1926, was not delivered until the 2d day of April, 1926. Contemporaneously with the execution of the deed and the payment of the purchase money, said F. B. Albert delivered to the complainant a separate instrument in writing as follows:

"Guntersville, Ala., 4/2nd, 1926.

"This agreement entered into between F. B. Albert party of the first part and Curtis Nixon party of the second part.

"Party of the second part has purchased from party of the first part ninety (90) acres of land for $1,105.00 said land is now under mortgage by party of the first part and party of first part has made party of second part a warranty deed to said land.

"Party of the first part agrees to have marked satisfied by April 1st, 1928, otherwise party of the first part agrees to refund purchase price, $1,105.00 with interest from date and pay for improvements put on said land by party of the second part, on April 1st, 1928, if said mortgage has not been satisfied and party of the second part agrees to furnish the party of the first part a warranty deed without any indebtedness against the said land made by the party of the second part.

"Said land being in Section Ten and Eleven of Township Nine and Range Two East, lying and being in Marshall County, Alabama.

"If party of the first part settles said mortgage and has mortgage record satisfied by April 1st, 1928, or before the above agreement shall be null and void, otherwise binding.

"F. B. Albert."

That said mortgage to the First Joint Stock Land Bank has not been paid, nor the record thereof marked satisfied, and although the complainant has tendered to the said personal representative a warranty deed in due form conveying to her, as the administratrix of the estate of said F. B. Albert, said land, which is free of all incumbrances or liens except the mortgage to said Joint Stock Land Bank, said administratrix has failed or refused to refund the purchase money with interest, and pay for the valuable improvements erected on said land by the complainant.

The demurrers attack the sufficiency of the bill for want of equity, and for nonjoinder of the heirs at law of F. B. Albert, deceased, and the First Joint Stock Land Bank as parties defendant.

The law is well settled that two or more writings executed contemporaneously by the same parties and relating to the same subject-matter will be looked to and construed together as the contract between the parties, and to ascertain their purpose and intent. Pierce v. Tidwell et al., 81 Ala. 299, 2 So. 15; Hunter-Benn & Co. Company v. Bassett Lumber Co., 224 Ala. 215, 139 So. 348; Weeden v. Asbury, 223 Ala. 687, 138 So. 267; Frasch v. City of Prichard et al., 224 Ala. 410, 140 So. 394; Whitehurst v. Boyd, 8 Ala. 375; Sewall v. Henry, 9 Ala. 24; Doe ex dem. Holman et al. v. Crane et al., 16 Ala. 570; Prater's Adm'r v. Darby, 24 Ala. 496; Byrne v. Marshall, 44 Ala. 355.

Applying this principle to the instant case, the deed and the writing delivered with it constitute the entire contract between the parties. The contract so considered is devoid of uncertainty and the clear intent of the parties as manifested by these writings is that the vendor Albert was to have...