Burgin v. Sugg

• Decision Date: 20 May 1920
• Docket Number: 6 Div. 9
• Citation: 85 So. 533,204 Ala. 270
• Parties: BURGIN et al. v. SUGG.
• Court: Alabama Supreme Court

85 So. 533

204 Ala. 270

BURGIN et al. v. SUGG.

6 Div. 9

Supreme Court of Alabama

May 20, 1920

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by D.F. Sugg against James G. Burgin and J.E. Brown to reform a contract and to enforce its specific performance. From decree overruling demurrers to the bill, respondents appeal. Reversed and remanded.

"State of Alabama, Jefferson County.

"This contract and agreement made and entered into on this the 20th day of June, 1917, by and between James B Burgin, hereinafter referred to as party of the first part and D.F. Sugg, hereinafter referred to as party of the second part, witnesseth:

"Therefore whereas, in the year 1912, the party of the second part borrowed from J.E. Brown, the sum of two thousand ($2,000.00) dollars, and as evidence thereof executed his promissory note in the sum of $2,000.00, and as security therefor executed a mortgage to J.E. Brown on certain property situated in the city of Ensley, Jefferson county Alabama; and,

"Whereas, the said note is past due, but has been extended from time to time by said J.E. Brown, and is still due and unpaid at the date of this instrument; and,

"Whereas, the party of the first part is desirous of having the party of the second part execute a release releasing certain property situated in the city of Bessemer, Jefferson county, Alabama, belonging to the estate of H.W. Crook, deceased, there being a lien existing at this time in favor of the party of the second part, by reason of the fact that the said H.W. Crook during his lifetime indorsed a certain note executed by Walter K. McAdory, payable to the party of the second part; and,

"Whereas, party of the second part is willing to release and cancel said lien, provided, however, if the party of the first part will indemnify him and will within sixty (60) days of this date, to cause the said mortgage above described to be satisfied and discharged of record and his property situated in the city of Ensley, Alabama, released free and absolutely from the operation of said mortgage:

"Now therefore in consideration of the said premises and the further consideration, which the party of the first part has in obtaining a release of the Crook property, it is distinctly understood and agreed by and between the parties hereto that the party of the first part, for and in consideration of the party of the second part executing a release on the Crook property, will within sixty (60) days from the date of this instrument cause the said above-described J.E. Brown mortgage be paid, satisfied and discharged of record and have the property of the second part released free and absolutely from the operation of the said mortgage.

"[Signed] Jas. B. Burgin.

"[Signed] D.F. Sugg.

"Witness: [Signed] O.H. Bilbrey."

Burgin & Jenkins, of Birmingham, for appellants.

Weatherly, Deedmeyer & Birch, of Birmingham, for appellee.

SAYRE J.

The bill in this cause was filed on the equity side of the circuit court of Jefferson against appellant Burgin as sole defendant, and sought reformation and specific performance of the contract appearing in the statement of facts. Demurrer to the bill was overruled, and defendants have appealed, assigning errors separately and severally.

Complainant's (appellee's) bill avers that--

"It was the purpose and intent of the parties to said above set out contract that respondent [Burgin] secure from orator a release of his lien claim against the estate of the said H.W. Crook, deceased, which claim was of great value, and in consideration for the relinquishment of orator's rights against said estate, to procure the payment and satisfaction of the mortgage debt in favor of the said J.E. Brown on said property."

The further averment is that Pauline Sugg, complainant's sister, owed the debt and owned the property, which is described in the bill, "and that by mistake or inadvertence said real estate,...