Ashurst v. Peck

• Decision Date: 11 January 1894
• Citation: 14 So. 541,101 Ala. 499
• Parties: ASHURST v. PECK ET AL.
• Court: Alabama Supreme Court

14 So. 541

101 Ala. 499

ASHURST v. PECK ET AL.

Supreme Court of Alabama

January 11, 1894

Appeal from chancery court, Montgomery county; John A. Foster Chancellor.

Bill by James V. Ashurst against W. D. Peck, administrator, etc., and others, for the specific performance of a contract of purchase. From a decree sustaining defendants' demurrer to the bill, plaintiff appeals. Reversed.

The defendants demurred to the bill on the following grounds: (1) That the bill and exhibits thereto show that the relation of mortgagor and mortgagee did not exist between Charles F Ashurst and A. B. Peck, but that the relation was that of vendor and vendee. (2) On the facts stated in the opinion the complainant has no right to redeem. (3) The contract discloses an unconditional executory contract of sale, and the said transaction cannot be held a mortgage, at the instance of the complainant. (4) The bill is insufficient, as one for specific performance, in failing to show that the complainant had ever offered to perform his part of the contract. (5) The bill fails to show that any tender was ever made of the amount due to the defendant. (6) The bill fails to show that a deed was ever tendered to either of the defendants for execution.

Brickell Semple & Gunter, for appellant.

J. M Chilton and J. M. Falkner, for appellees.

HEAD J.

On the 22d day of November, 1886, W. T. Burney and wife, for the cash consideration of $4,250, sold and conveyed by deed to A. B. Peck the lands described in the bill. The bill avers that the purchase was negotiated by, and was really made for the benefit of, Charles F. Ashurst, who was the son-in-law of Peck, the latter agreeing to convey the lands to the former upon being repaid the said purchase money, with interest; and so it was that by an instrument in writing executed on the 1st day of December, 1886, that said Peck, reciting the said purchase, agreed that when Ashurst pays or causes to be paid to him the said purchase money, (which in this instrument is stated to be $4,000,) with interest at 10 per cent. per annum, he would make to him (Ashurst) the same warranty title that Burney and wife had made to him (Peck;) and it was further stipulated that it was understood that the contract so entered into was based on a note that Ashurst had that day executed to Peck, and another that he would thereafter execute, covering the said $4,000, with interest. Upon the consummation of the purchase, the bill avers, Ashurst went into actual possession of the land, and remained therein until his death, which occurred in the fall of the year 1887, exactly when does not appear. The complainant avers that he does not know whether either of the mentioned notes was in fact executed or not. The recital of the written instrument, however, must be regarded as ground for the assumption that the first one was in fact executed and delivered to Peck. The complainant avers that after the purchase Ashurst made "some considerable payments" thereon to Peck, but he does not know the amount. On the 17th day of January, 1887, Ashurst conveyed, by way of mortgage, his interest in the land to Lehman, Durr & Co., to secure a large debt due in October, 1887, with power of sale on default in John W. Durr and Joseph Goetter or either, who were members of said firm; and on the 1st day of April, 1889, Goetter, in conformity to the trust, executed the power, and sold and conveyed the land, with other lands embraced in the mortgage, to Meyer Lehman for the sum of $3,000. Afterwards, on the 15th day of February, 1890, Lehman conveyed the land to the complainant, James V. Ashurst, who immediately offered to pay to the administrator of said A. B. Peck, who died meanwhile, whatever balance there was due to the estate of A. B. Peck on said purchase, but the administrator refused to accept the payment. The bill avers that on the death of Charles F. Ashurst, in the fall of 1887, said A. B. Peck took possession of the lands, and received the crops and rents of 1887, amounting in value to $1,000 or other large sum, and remained in possession thereafter until his death, receiving the rent of such portion as was rented, and enjoying the use of such portion as was not rented; and that since his death-the date of which is not averred-his administrator, W. D. Peck, as such, has remained in possession, receiving each year the rents, and enjoying the use, as his intestate had done, amounting to specified large sums; and it is insisted that the payments made by Charles F. Ashurst in his lifetime, and the said crops, rents, and values of use, and occupation received and enjoyed by Peck and his administrator since, are proper credits on the indebtedness owing by Charles F. Ashurst. The bill is filed by said James V. Ashurst against the administrator and heirs of A. B. Peck to obtain specific performance of the contract of purchase. He prays for an accounting wherein he shall be allowed all just credits on said indebtedness, and offers and submits himself to pay whatever sum may be found due the estate of A. B. Peck thereon, and prays for a conveyance, and for general relief.

It is objected by way of demurrer to the bill that the relief sought cannot be had by this complainant for that the conveyance to Lehman, under the foreclosure sale, and his conveyance to complainant, are void for maintenance, because upon the facts averred, which we have substantially set forth above, A. B. Peck, or his administrator, must be held to have then had possession of the land adversely to Lehman, Durr & Co. and Lehman. We are of opinion that the presumption, upon the facts as we find them stated, is that the possession taken and held by Peck and his administrator, when the occupancy of Charles F. Ashurst was terminated by his death, was in subordination to the equitable title of the latter's mortgagees, and Lehman, claiming under them, until the refusal of the administrator to perform the contract took place. Upon entering into the contract of sale by Peck with Charles F. Ashurst equity treated Peck, the vendor, as the owner of the purchase money, and as trustee of the legal title to the land for the use of Ashurst, the vendee, and for his, the vendor's, security in the collection of the purchase money, by virtue of the lien which equity raises, in the nature of a mortgage, in favor of the vendor who retains in himself the legal title; Ashurst, the vendee, being regarded as the real owner of the land, and as trustee of the vendor for the purchase money. The mere possession and...