Cleere v. Cleere

Citation3 So. 107,82 Ala. 581
PartiesCLEERE v. CLEERE.
Decision Date13 July 1887
CourtSupreme Court of Alabama

Appeal from chancery court, Franklin county; THOMAS COBBS, Judge.

The bill in this case was filed on the fifteenth of July, 1878 by Lawrence P. Cleere, a son of George D. Cleere, Sr. deceased, against George D. Cleere, Jr., individually, as administrator of said decedent's estate, and a guardian of the complainant, and against several other persons; and sought to compel a settlement of said administration and guardianship, and to enforce a vendor's lien on certain lands which the administrator had sold under an order of the probate court, becoming himself the purchaser, for the amount due the complainant as his distributive share of the purchase money. James E. Moore and others, sureties on the bonds of said administrator and guardian, for whose indemnity he had executed a mortgage on the lands, were joined as defendants to the bill; and said Moore was also made a defendant as the executor of the last will and testament of S. S. Anderson deceased, to whom the administrator had executed another mortgage on the lands, or a part of them.

George D. Cleere, Sr., died intestate prior to the twenty-fifth of May, 1857, and letters of administration on his estate were on that day granted to said George D. Cleere, Jr., jointly with the widow. The order for the sale of the lands was granted on the eleventh of January, 1858, on the ground that they could not be equitably divided without a sale. The sale was reported and confirmed, the price bid being $18,255.20 but the purchase money was never paid, and no conveyance was ever executed to the administrator, as the purchaser, under the order of the court. The letters of guardianship were granted on the twenty-second of March, 1858. Under a decretal order of reference in the cause, the register reported that the amount due to the complainant from the administrator as his distributive share of the estate, was $7,671.42, but a balance of $2,320.78 was due from him to said administrator as guardian; and the report was confirmed. Pending the suit, and agreement of compromise was entered into between the complainant and said James E. Moore as the executor of S. S. Anderson's will; and this compromise was set up by said Moore in an amended and supplemental answer to the bill, and also in an amendment to a cross-bill which he had filed. The complainant objected to the enforcement of the agreement, and sought to set it aside, on grounds which appear in the opinion of the court. The chancellor refused to set aside the agreement, and rendered a decree, on final hearing on pleadings and proof, according to its terms; and this part of the decree is now assigned as error.

The agreement of compromise, which was signed only by the complainant, was under seal, dated January 20, 1880, and in these words: "Received, Belgreen, Alabama, January 20, 1880, of James E. Moore, executor of the last will and testament of S. S. Anderson, deceased, the sum of one thousand five hundred dollars, by an assignment of that amount of the proceeds of the following lands, which, with other lands were mortgaged to said S.S. Anderson by George D. Cleere and his wife, (Nancy Cleere,) under date of April 8, 1876, to secure the payment of a certain note therein described, which mortgage was duly recorded," etc.; describing the lands by government numbers, as containing 231 acres. "The said James E. Moore, as such executor, agrees to sell said lands, under and by virtue of said mortgage, at as early a day as the law will permit, and, if said mortgage should be satisfied without a sale, to pay me the above sum of $1,5000 of the proceeds of the same; and I agree that, at said sale, I will bid said sum of $1,500 for said lands; which sum paid as above, I accept as a full payment from the estate of said S. S. Anderson, and from James E. Moore, individually, and as surety on the bonds at George D. Cleere, as administrator of the estate of George D. Cleere, deceased, and as guardian for me; and J. T. Reynolds and Thomas Masterson, as individuals, and as sureties on the said bonds of said George D. Cleere as administrator and guardian, and Peter Barker and Jesse Hurley, from any and all liabilities to me as individuals, or as sureties on any and all of the bonds above described; and I waive all vendor's liens, or other liens of any character whatever, to which I may be entitled, in or on any of the property conveyed by mortgage to said S. S. Anderson, deceased, or in any mortgage executed by said George D. Cleere and wife to said Masterson, Reynolds, and Moore, except a vendor's lien on the north-west quarter of section eleven, (11,) township seven, (7,) range ten (10) west,"-which quarter section said George D. Cleere had conveyed to his wife, by deed dated April 11, 1876. "Be it understood that this instrument is intended to be a full discharge to all persons and estates from all further or future liabilities to me by reason of any claim that I am entitled to from the estate of my deceased father, Geo. D. Cleere, or from George D. Cleere as my guardian, except to said George D. Cleere alone as administrator and as guardian; and that it is also intended, in this instrument, to waive all liens, of whatever name or character, which I might be entitled to against any and all property, except said quarter section last described, against which I do not waive any lien. And I further agree to dismiss a suit commenced by me, by bill filed in the chancery court of Franklin county, against all parties to said suit, except said George D. Cleere, individually, as administrator, and as guardian; that I agree to dismiss as to James E. Moore, as executor of S. S. Anderson individually, J. T. Reynolds as surety, Thomas Masterson and others, and James E. Moore, as the executor of the last will of said S. S. Anderson; agreeing, also, to pay one-half of the accrued costs in said suit. And on the presentation of this instrument the register in chancery of said court, or the chancellor, is authorized to dismiss said suit as to all the parties except said George D Cleere, as above stated, and on the terms above stated. In witness whereof," etc.

Brickell, Semple & Gunter and L. P. Cooper, for appellant.

W. P. Chitwood, contra.

CLOPTON J.

The only assignments of error urged in argument are directed to that part of the decree, from which the appeal is taken, which gives effect to a compromise and settlement entered into by appellant with James E. Moore, as executor of S. S. Anderson. The instrument, which is signed by appellant alone, acknowledges having received from Moore, as such executor, the sum of $1,500, by the assignment of the proceeds of 131 acres of land, specially described, which constituted a part of a large tract of land mortgaged by appellee, G. D. Cleere, to Anderson. Moore, as such executor, agreed to sell the lands under the mortgage at as early a day as the law will permit, and appellant agreed to bid for the lands the amount assigned; and, should the mortgage be satisfied without a sale, Moore was to pay appellant $1,500, which sum, paid as above mentioned, appellant accepted as full payment from the estate of Anderson, and from the sureties on the bonds of Cleere as administrator and as guardian, and released and discharged them from any and all liabilities as individuals, and as such sureties. Appellant further agreed to waive all liens, as vendor, or otherwise, to which he was entitled on the lands embraced in the mortgage to Anderson, or in any mortgage to the sureties on the guardian's bond, and to dismiss the present suit as to all the defendants except the administrator and guardian, and especially as to the estate of Anderson, and the sureties on both bonds; Moore agreeing to pay one-half of the accrued costs. On the presentation of the instrument, the register or chancellor was authorized to dismiss the suit, on the terms stated, as to the parties mentioned. We have stated the substance and legal effect, as the instrument is unnecessarily prolix. A statement of the purposes of the bill, and of the state of the litigation, showing the relative rights and liabilities of the parties, is necessary to a full and correct understanding of the settlement and release.

Upon the death of appellant's father, appellee, G. D. Cleere qualified as administrator of his estate, and was subsequently appointed guardian of appellant, who was then a minor. Under an order of the probate court, the administrator sold the lands of...

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