Clements v. Draper

• Decision Date: 08 January 1896
• Citation: 19 So. 25,108 Ala. 211
• Parties: CLEMENTS ET AL. v. DRAPER ET AL.
• Court: Alabama Supreme Court

19 So. 25

108 Ala. 211

CLEMENTS ET AL. v. DRAPER ET AL.

Supreme Court of Alabama

January 8, 1896

Appeal from chancery court, Clay county; S. K. McSpadden Chancellor.

Bill by Draper, Mathis & Co. against Benjamin Clements and others to foreclose a mortgage. From a decree in favor of plaintiffs defendants appeal. Reversed.

The bill in this case was filed by the appellees, Draper, Mathis & Co., to foreclose a mortgage which was executed on March 4 1887, by B. A. Clements and Tempy Clements, his wife. This mortgage was copied in the body of the bill; and the description of the real estate contained therein was as follows: "The west half northwest quarter section fourteen, and northeast quarter northeast quarter of section fifteen, township nineteen, range nine, containing one hundred and twenty acres, more or less, of land; also, the northeast quarter northwest quarter, west half northeast quarter, northwest quarter southeast quarter, and northeast quarter southwest quarter, section fourteen, township nineteen, range nine, containing two hundred acres, more or less, of land; also, the lots No. 1,312, a part of the west half of the southeast quarter, a part of No. 4,100, the east half of southeast quarter, a part of the east half of the northwest quarter, a part of said described lots, all lying west of Euitachopco creek, to agreed line between John Kerley and John W. Bishop, in section twenty-nine, township twenty-one, of range eight; also, lot 4,101, the east half of northeast quarter, No. 1,310, the west half of the northeast quarter, all in section twenty-nine, township twenty-one range eight; also, the east half of No. 4,102, the east half of southeast quarter of No. 4,015, the southwest quarter of southeast quarter of section twenty, township twenty-one, range eight; No. 6,353, the southwest quarter of the southwest quarter of section twenty-one, township twenty-one, range eight; and also a part of the northeast quarter of southwest quarter, section twenty-nine, township twenty-one, range eight, lying east of an agreed line running in a northwestern direction as an agreed line between John Kerley and John W. Bishop,-containing in all four hundred and seventy-five acres, more or less, of land, the above-described land being and lying in Clay county, Alabama." The facts of the case, as averred in the bill and shown by the evidence for complainant, are substantially as follows: Draper, Mathis & Co. were engaged in mercantile business in Oxford, Ala. At this time Tempy and B. A. Clements were living on the lands sought to be subjected by this suit, in Clay county, Ala. On 26th January, 1887, B. A. Clements came to Oxford, and bought goods of Draper, Mathis & Co. to the amount of $246.22, and gave his note for $300, secured by mortgage on personal property, which he represented to be his own. On the 2d of February, 1887, he returned to Oxford, and bought of Draper, Mathis & Co. other goods to the amount of $100.40, and two mules at the agreed price of $275, giving his separate note for the price of the mules, in which note Draper, Mathis & Co. reserved title to said mules until the same was paid in full. Soon after this, Draper, Mathis & Co. learned that B. A. Clements did not own any property. They immediately notified him of what they had heard, and called on him to come up and see about the matter. He came on the 4th March, 1887, and brought his wife, Tempy Clements, with him. He then acknowledged that he had gotten the goods on a false representation, and confessed to Draper, Mathis & Co. that it was true that he did not own any property at all, and that the personal property on which he had given them a mortgage was the property of his wife. Draper, Mathis & Co. then settled the $275 note by taking back the mules, and surrendering the note to B. A. Clements. Tempy Clements, in order and for the purpose of getting further supplies, assumed the account of B. A. Clements (B. A. Clements giving his written consent for her to do so) amounting to $347.17, and authorized Draper, Mathis & Co. to charge the same to her. This they did, and at the same time credited B. A. Clements' account with said amount, thereby settling B. A. Clements' account on their books; and they then and there surrendered and delivered to B. A. Clements the first note and mortgage they had taken from him, and all the papers they held against him. At the same time (on 4th March, 1887), and as a part of the same transaction, Draper, Mathis & Co. contracted with Tempy Clements to furnish her to the amount of $800 during that year, besides agreeing to furnish two of her tenants on her credit; and Tempy Clements then and there executed the note and mortgage which is the foundation of this suit, her husband, B. A. Clements, joining her in the execution of the same, thereby giving his written consent or concurrence in his wife's said contract. Under this contract, Draper, Mathis & Co. charged Tempy Clements with the $347.19, which had been purchased by B. A. Clements, as before stated, and sold her the same pair of mules which they had that day bought back from B. A. Clements, and sold her additional goods, and continued to sell her goods during that year until her account amounted to about $963, and the accounts of her tenants, who were furnished on her credit, amounted to $205. On the 19th May, 1887, Tempy Clements executed an additional note and mortgage to Draper, Mathis & Co. for $150; B. A. Clements joining her in the execution of these papers also. Draper, Mathis & Co. claim that all goods sold after the 4th of March were sold alone to, and on the credit of, Tempy Clements. On these debts there was paid, in mules returned, $245; goods returned, $5; cotton, $250.67,-aggregating $500.67. Draper, Mathis & Co. claim that these payments were made without any direction as to their application. Draper, Mathis & Co. applied these payments to the satisfaction of the tenants' accounts, and the balance a credit on account of Tempy Clements. The defense interposed to the maintenance of the bill and the other facts of the case are sufficiently stated in the opinion.

The defendant demurred to the bill on the following grounds: "(1) The description of the lands or of portions thereof is too vague and indefinite. (2) The description as follows, 'Lots No. 1,312, a part of the W. 1/2 of S.E. 1/4,' is too indefinite, and is unintelligible; and 'a part of No. 4,100, the east half of the northwest quarter, a part of the east half of the northwest quarter, a part of said lots, all lying west of Euitachopco creek, to agreed line between John Kerley and John W. Bishop, in section 29, T. 21, R. 8; also, the east half of No. 4,102, the east half of the S.E. 1/4 of No. 4,015; also, a part of the N.E. 4 of S.W. 1/4 Sec. 29, T. 21, R. 8., lying east of an agreed line running in a northwestern direction as an agreed line between John Kerley and John W. Bishop' because the description as set out in the bill is too vague and indefinite. (2) Because these descriptions in the mortgage, as set out in the bill, are too vague and uncertain. (3) The mortgage as to the lands herein mentioned is void for uncertainty." On the submission of the cause, on the pleadings and proof, the chancellor overruled the demurrers, and rendered the following decree: "Taking the testimony in the case, it seems clear to my mind that the complainants' theory of the case is true. Tempy Clements became the principal, and not the security. She had a right to assume the prior debt of B. A. Clements, and, not being instructed, complainants had the right to place payments as a credit where they pleased, and especially on the older or unsecured indebtedness of defendants. It is therefore ordered that it be referred to the register of this court to ascertain the amount now due by the defendants to the complainants for the amount of the claim sued on, including principal and interest to this date, also a reasonable attorney's fee for prosecuting this suit, and that he report to the next term of this court." The respondents appeal, and assign this decree of the chancellor as error.

Knox, Bowie & Dixon, for appellants.

Matthews & Whiteside, for appellees.

COLEMAN J.

Draper Mathis & Co., a partnership engaged in the mercantile business, filed the present bill to foreclose a mortgage executed by B. A. Clements and his wife, Tempy Clements, on certain lands, to secure the payment of their note, payable to complainants. The respondents demurred to the bill as a whole, and also assigned grounds of demurrer to certain parts of the bill. The demurrer to the whole bill was properly overruled. We are of opinion that the description of certain portions of the land is...