Brasher v. Grayson

• Decision Date: 10 May 1928
• Docket Number: 6 Div. 46
• Citation: 217 Ala. 674,117 So. 301
• Parties: BRASHER et al. v. GRAYSON.
• Court: Alabama Supreme Court

117 So. 301

217 Ala. 674

BRASHER et al. v. GRAYSON.

6 Div. 46

Supreme Court of Alabama

May 10, 1928

Rehearing Denied June 7, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by B.G. Brasher against C.H. Grayson, doing business as Grayson Lumber Company, and cross-bill by respondent against complainant and Myrtle Brasher and S.D. Brasher. From a decree appointing a receiver, cross-respondents appeal. Reversed and remanded.

Fort &amp Jones, of Birmingham, for appellants.

Miller & Graham, of Birmingham, for appellee.

THOMAS J.

The appeal is from a decree ordering receivership of real property as an ancillary remedy to foreclosure or enforcing equitable liens. The bill was filed by a minor, whose disabilities of nonage had been removed, to disaffirm a mortgage and have the same canceled as affecting his interest in the real property embraced therein and calling on respondent to propound his lien, title, or claim to the land.

It is averred that at the time the mortgage was executed complainant and wife were not of age; that his disabilities were removed, and immediately on the granting of that relief he disaffirmed the mortgage and so notified respondent; he prayed that respondent propound his claim and title, and asked that the mortgage be canceled as a cloud on complainant's title.

Respondent demurred, answered, and made the latter pleading a cross-bill making mortgagors and his grantor, S.D. Brasher, parties prayed an accounting on the mortgage or lien, the same being the means of procuring the money that was used in completing the payment of the purchase price, in procuring the work and materials used in erecting the house thereon, and the discharge of materialmen's mechanics', and workmen's liens accruing thereon; that the same were furnished and done by mortgagee under a contract with complainant (in original bill), mortgagors, and their father who then held the superior title, and prayed that the same be declared superior liens on the property; that the mortgage evidencing a part thereof and the balance of such indebtedness and lien perfected under the statute be enforced against this land in favor of original respondent. There were special and general prayers for relief; petition for receiver of property, collection of rents, and its preservation by insurance, etc. And the petition for receiver set out the facts, the value of the property averred not to be adequate security for the indebtedness as compared to the amounts, the lack of insurance, and the attempt at disaffirmance after law day of the mortgage and demand and refusal of payment, and failure to deliver on demand the possession of the premises after the offer by Grayson to pay mortgagors all of the money which had been paid by them (respondents to cross-bill), or either of them, in part payment of the purchase price of said lot, in payment for work, labor, and material used and furnished in the construction of the dwelling on the lands.

The case for decision (as we shall see) is not in exact analogy to any one class of our cases declaring the general rules, but must be adjudged upon its own complicated special facts. The appellants B.G. Brasher and S.D. Brasher agreed with C.H. Grayson that if the latter would pay the American Cast-iron Pipe Company $300, the amount owing by S.D. Brasher to that company on the purchase price of the lot, and furnish the necessary building materials to be used in the construction of a dwelling thereon and the money to pay for the labor employed to that end, S.D. Brasher would, upon conveyance of the lot to him by his vendor, convey the same to B.G. Brasher, and the latter and wife would, by appropriate conveyance to complainant, mortgage said lot in the sum of $5,500 to secure the repayment to Grayson of said money so advanced as purchase price, material, labor, etc. It was then estimated between the three parties that the cost of the erection of said house (with the said balance of $300 to be paid on the purchase price of the lot) would not exceed the sum of $5,500--the amount of the mortgage. It is averred that Grayson paid the $300 to the American Cast-iron Pipe Company, furnished the money to the amount of $2,998.02 for labor, and procured or advanced building materials of the price and value of $3,256.64, pursuant to said agreement; and that said sums and building materials were used in paying for said lot and the erection of the dwelling house thereon, now the subject of controversy; that the American Cast-iron Pipe Company executed its deed conveying the lot to S.D. Brasher, who, in turn, conveyed to B.G. Brasher. The latter and wife executed their mortgage on said real property to C.H. Grayson. It was at this stage, and pursuant to agreement, that Grayson paid the purchase price due to the American Cast-iron Pipe Company and thereafter furnished the labor and material to the amounts above indicated. The two deeds and mortgage were executed and delivered simultaneously with said payment of the balance of purchase price on the lot, and all was one transaction. It is not insisted that either of the Brashers had paid C.H. Grayson anything. The insistence as to B.G. Brasher was that, being an infant, he had his disabilities of nonage removed and the same day notified C.H. Grayson of his repudiation and disaffirmance of said mortgage and contracts made with him and liability to him thereon, and instituted suit in equity to cancel the mortgage as a cloud on his (B.G. Brasher's) title, being in possession of said property after disaffirmance and repudiation of said mortgage and having failed or refused to deliver to C.H. Grayson that possession or to convey the same to the said C.H. Grayson. The latter filed his cross-bill setting up the facts, and facts showing a due compliance by him with the statute giving materialmen a lien, and offering to pay to S.D. Brasher and B.G. Brasher any and all sums which they, or either of them, have paid on the purchase price of the lot and on the cost of erecting the house thereon, and in all things to do equity; concluding with appropriate prayers for relief in several alternatives, and for general relief, and for the appointment of a receiver of the property ancillary to the proceedings in the premises.

There were several affidavits and counter affidavits touching the facts and whether the minority of B.G. Brasher was disclosed by the father to Grayson's agent; and that on one or more occasions the father and son acted in ordering material and making changes thereof; and that on one occasion the two Brashers visited Grayson's office to obtain money on or for the contract.

The general requirements for the offer to do equity as a condition on which equitable relief will be granted is said to inhere in many judicial proceedings dependent on the facts of the case--where the remedy sought demanded the offer to do equity and submit without reservation to the jurisdiction of the Court of Equity in the premises. Clark v. Whitfield, 213 Ala. 441, 105 So. 200; Coburn v. Coke, 193 Ala. 364, 69 So. 574; Sims, Ch. Pr. § 441; 1 Daniel, Ch. Pr. § 441; 1 Storey, Eq. § 301; 1 Pome.Eq. (3d Ed.) § 385. Such offer is not required to be embraced in a bill, under the statute, to remove a cloud from title to real property.

The respondent in the original bill, making his answer a cross-bill, avers the whole facts, the nature of the right title, and interest of each of the parties, and appropriately offers in its prayer to do whatever the court might think his duty as one coming into a court of conscience (1 Daniel, Ch. Pr. § 441), and calls upon the original complaina...