Cloud v. Dean

• Decision Date: 18 December 1924
• Docket Number: 1 Div. 343
• Citation: 212 Ala. 305,102 So. 437
• Parties: CLOUD et al. v. DEAN et al.
• Court: Alabama Supreme Court

102 So. 437

212 Ala. 305

CLOUD et al. v. DEAN et al.

1 Div. 343

Supreme Court of Alabama

December 18, 1924

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action on common counts by J.B. Cloud and another against the Republic Creosoting Company, N.W. Dean and another substituted defendants. From a judgment for defendants plaintiffs appeal. Affirmed in part, reversed in part, and remanded.

Harry T. Smith & Caffey, of Mobile, for appellants.

R.P Roach, of Mobile, for appellees.

THOMAS J.

The suit was on the common counts against the Republic Creosoting Company, and defendants Dean were brought in by way of the statute providing for intervention or claim. Code 1907, § 6050.

The court made an order that the Deans, as individuals or as composing the firm of Dean Bros., were made defendants, but did not formally declare, in the language of the statute that said substituted defendants should stand in the place of the original defendant; nor did that order formally discharge the original defendant from liability to plaintiff, as provided in the statute. The record recites that issue was joined by all the parties to the cause, and thereon there was judgment for defendants.

The right of such intervention is by reason of, and must be in the manner provided by, the statute; and, unless there is substantial compliance therewith the proceedings to bring in the substituted party are not effective. The elements authorizing the right of intervention by way of an interpleader are stated in Marsh v. Mutual Life Ins. Co., 200 Ala. 438, 76 So. 370; Stewart v. Sample, 168 Ala. 270, 53 So. 182.

When the petition for intervention was granted by the court December 22, 1923, as to N.W. and Bush Dean (doing business as Dean Bros.) and T.W. Weatherford, in his own behalf, and the respective appearances being made, though no formal order, as indicated, was made, the law discharged the original defendant from liability to the plaintiff, the substituted defendants brought in appearing for the original defendant to litigate for the money sought to be recovered by the suit. The fact that one of the substituted defendants, Weatherford, was thereafter permitted to or did withdraw from the suit and made no defense thereof did not affect the status of the Republic Creosoting Company as original defendant. Under such pleadings and fact the judgment rendered was valid in so far as it affected and discharged the original defendant. Recent cases in intervention or claim suits do not militate against this conclusion. H.C. Schrader Co. v. A.Z. Bailey Gro. Co., 15 Ala.App. 647, 74 So. 749; Ex parte A.Z. Bailey Gro. Co., 201 Ala. 79, 77 So. 373; Stewart v. Sample, 168 Ala. 270, 53 So. 182.

It is true that the plea of the claimants or interveners is not shown by the record; yet the recital of the judgment entry is that "issue having been joined between all the parties to this cause," etc., and is sufficient to show that the parties litigant were the plaintiffs and the claimants, N.W. and Bush Dean, doing business as Dean Bros., and that they had joined issue on their claim to the funds in question. The judgment, in so far as it affects the Republic Creosoting Company, is affirmed.

By the written contract in evidence Joseph B. Cloud "agrees to allow" N.W. Dean to cut, haul, and carry to Mobile "all of the pine timber growing" on the land indicated which "measures 12 inches in diameter, 20 feet from the butt end of the logs, and all above said measurement" (except five pine trees reserved), and the "right and liberty" is given "to go upon said lands *** to cut and remove the said timber during the existence of this contract, until the date of its termination"; and the contract contained a consideration. It provided "that all rights under this contract cease after November 14, 1922, and may be sooner ended by fulfillment or by consent of the parties hereto." This was not a deed to the timber, but an agreement for the cutting and removal from the land to Mobile--an executory agreement to sell and convey the timber when severed and moved to the point indicated. C.W. Zimmerman Mfg. Co. v. Daffin, 149 Ala. 380, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am.St.Rep. 58.

It is provided by statute:

"A seal is not necessary to convey the legal title to land to enable the grantee to sue at law. Any instrument in writing signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument." Code 1907, § 3356; Code 1923, § 6839.

It is generally held that to pass title to real property apposite words of conveyance indicating such intention of the parties are necessary. Moore v. McAllister, 205 Ala. 512, 88 So. 643; Matthews v. T.C.I. & R.R. Co., 157 Ala. 23, 47 So. 78; Laster v. Blackwell, 128 Ala. 143, 30 So. 663; Webb v. Mullins, 78 Ala. 111; I.B. & L. Ass'n v. Agricola, 124 Ala. 474, 27 So. 247; Doe, ex dem. Anniston City Land Co. v. Edmondson, 145 Ala. 557, 40 So. 505.

It has been declared that apt words of conveyance are not necessary (Henry v. Brown, 143 Ala. 446, 39 So. 325), when the manifest intention is to divest the grantor of whatever title he has and invest the grantee therewith, and this intention is to be collected from the entire instrument. Ward v. Ward, 108 Ala. 278, 19 So. 354; Sharpe & Son v. Brantley, 123 Ala. 105, 26 So. 289; Dreyspring, Adm'r, v. Loeb, 119 Ala. 282, 24 So. 734; New England Mortg. Sec. Co. v. Clayton, 119 Ala. 361, 24 So. 362; Abney v. Abney, 182 Ala. 213, 62 So. 64. The intention of the grantors, collected from the entire instrument, was not to transfer the legal title to the grantee. This rule of construction has been applied to deeds for standing timber (Davis v. Miller-Brent Lbr. Co., 151 Ala. 587, 44 So. 639), and to a vineyard ( Ferris v. Hoglan, 121 Ala. 240, 25 So. 834).

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