Coleman v. Coleman

• Decision Date: 13 June 1911
• Citation: 173 Ala. 282,55 So. 827
• Parties: COLEMAN ET AL. v. COLEMAN ET AL.
• Court: Alabama Supreme Court

55 So. 827

173 Ala. 282

COLEMAN ET AL. v. COLEMAN ET AL.

Supreme Court of Alabama

June 13, 1911

Appeal from Chancery Court, Autauga County; W. W. Whiteside Chancellor.

Bill by Kate Coleman and others against Claud Coleman and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

W. A Gunter and A. A. Evans, for appellants.

Ray Rushton, W. M. Williams, W. H. & J. R. Thomas, and Eugene Ballard, for appellees.

SIMPSON J.

The bill in this case was filed by the appellants, alleging that on January 12, 1895, Elizabeth S. Coleman, who was the mother of some of the complainants and of the respondent Claud Coleman and the grandmother of the other complainants, died intestate; that said intestate owned the land in controversy that in 1887 she had executed a mortgage on said lands to the New England Mortgage Company, which mortgage, on the 14th day of December, 1894, covered an indebtedness of $700; that on said last-named day said intestate executed a mortgage to said respondent Claud Coleman for nominally $1,300, due by promissory note of that date; that at the death of said intestate said Claud Coleman went into possession of the land as tenant in common with the other heirs which he has held to and including 1907 and has had the use and benefit of the rents of said land ever since (about 15 years); that the nominal $1,300 note was intended to cover money thereafter to be paid by said Claud Coleman which was never paid, or, if there really was any amount paid, it was more than offset by the value of the rents, while said tenant in common was in the possession, to wit, during the years 1895, 1896, and 1897, so that in September, 1907, nothing was due on said mortgage of December 14, 1894, on which day said Claud Coleman undertook to foreclose said mortgage; that the proceedings for said foreclosure were not in accordance with the terms of the mortgage, but at said sale said mortgagee bought the property; that, on the 21st day of September 1897, said New England Mortgage Company foreclosed its mortgage and purchased the property; that afterwards, on the 23d day of January, 1901, said New England Mortgage Company, for a consideration of $891, conveyed said property to said Claud Coleman, who had been in possession since January, 1895, enjoying the use and occupation thereof; that up to and after said purchase said Claud Coleman never pretended that said land belonged to him, but recognized the rights of said cotenants in common, and that said purchase inured to the benefit of his said cotenants; that on December 1, 1902, said Claud Coleman mortgaged said lands to the Georgia Loan & Trust Company for $3,500, and on November 29, 1907, conveyed the lands to C. E. Thomas and Major M. Smith, whose heirs, together with said Thomas, are the other respondents to the bill; that the consideration of said sale was the assumption by said Thomas and Smith of said mortgage debt to said Georgia Loan & Trust Company of $3,500, and the securing of about $3,500, due by said Claud Coleman to said Thomas and Smith and to third persons, "taken up by said Thomas and Smith for said Claud Coleman; that said transaction was intended to be a security for money, and not an absolute deed; that neither said Thomas and Smith nor said Georgia Loan & Trust Company is a bona fide purchaser without notice; that said Thomas and Smith took up and assumed for said Claud Coleman a debt held by the Prattville Mercantile Company, of $3,500, as part of the consideration of said deed, which was composed largely of usurious interest, of which Thomas and Smith had notice;" that "the conveyances of the said Georgia Loan & Trust Company and to Thomas and Smith in equity operate only on the one- fifth interest in said lands held and owned by Claud W. Coleman, since neither of said conveyances were taken without notice of the claims and rights of complainants in and to said lands."

The prayers of the bill are that c...