Conner v. Smith

• Decision Date: 14 January 1890
• Citation: 7 So. 150,88 Ala. 300
• Parties: CONNER ET AL. v. SMITH ET AL.
• Court: Alabama Supreme Court

7 So. 150

88 Ala. 300

CONNER ET AL. v. SMITH ET AL.

Supreme Court of Alabama

January 14, 1890

Appeal from chancery court, Madison county; S. K. MCSPADDEN Chancellor.

The original bill, filed by the appellants, as children of one William H. Moore, who had conveyed to them the real estate in controversy, seeks to redeem the said lands, and prays an account stated. The conveyance under which the complainants deduce title recites that the lands are "subject to debts due to Joseph C. Bradley and E. G. Smith," and the habendum clause of the conveyance makes the lands conveyed subject to these debts. There were originally several parcels of land involved in the suit. But the last amendment of the bill strikes out all averments and all claims to relief except as to one, a store-house, which is shown to have been sold under a power of sale contained in a deed of trust made by said William H. Moore, prior to the conveyance to the complainants, to secure a debt owing to the defendant Elon G. Smith. The sale under the power in the deed of trust was made in June, 1867, at which sale Smith, the creditor, became the purchaser. In 1869, Smith sold and conveyed to Bernstein and Herstein, who were also made defendants to the bill. The original bill was filed on the 17th day of February, 1877. The case has been before this court on appeal twice before. The questions then considered are not now involved. The present assignment of error relates exclusively to the decree of the chancellor rendered on June 2, 1887, sustaining demurrers to the last amended bill.

As the case now stands, the purpose of the bill is to set aside the sale of a single piece of property covered by the deed of trust, and to be let in to redeem that property, and for an account stated of its rents and profits. The ground for relief is that the debt secured by the deed of trust was much less than was claimed; that it was an unadjusted open account, subject to deduction because of counter-claims in favor of the grantor, Moore, originating after he had conveyed the equity of redemption to the complainants, and before the sale under the said deed of trust, which claims he had assigned to the complainants, and of which assignment the defendants Smith and Herstein and Bernstein had notice. The second amended bill was intended to cure the defects pointed out by this court when the case was here on former appeal and avers with particularity Moore's indebtedness to Smith, specifying the items constituting it, and shows the aggregate to be $11,542. All of this indebtedness, except $3,700 which was for money advanced and supplies furnished was for mules and agricultural implements which Moore had the right to pay for and keep, or to return, paying for the use of them. The amended bill alleges that, before the time appointed for Moore to make such election, Smith took the mules and implements, depriving Moore of the right of election; and that the use of the same was of the value of $1,250, which, added to the $3,700 for supplies furnished and money advanced, made to the aggregate of Moore's indebtedness only $4,950. This indebtedness, it is averred was "subject to the following credits, as of December, 1866." Damage suffered by Moore in consequence of being deprived of the right of taking the mules by purchase, which is stated to be $500; and because of Smith's taking and converting the mules, corn, and cotton, the property of Moore, and of the value of $3,775; which makes an aggregate of $4,275, to be deducted from the indebtedness, as shown above. The fourth paragraph of the second amendment to the original bill averred the transfer and assignment by Moore to the complainants, before the sale of the property under the deed of trust, for valuable consideration, of all the claims of set-off, recoupment, counter-claims, and damages, which had been specifically averred in the amended bill, and also avers that the complainants notified the defendants of such transfer and assignment. The defendants demurred to this fourth paragraph of the amendment, upon the grounds: (1) that it was a departure from the case as made by the original bill; (2) that the said paragraph is inconsistent with and repugnant to the ninth paragraph of the amended bill, (which ninth paragraph avers notice to the defendants by the complainants that they held these counterclaims by assignment from Moore, and, further, that they offered to redeem the land from the defendants, paying what might be due between them and defendants;) (3) and (4) that the said claims set out in the paragraph are barred by the statute of limitations of six and three years, respectively; (5) that the said claim of $500 "for the conversion of the mules by the defendant is a claim of damages for a tort, and not the subject of set-off, of which this court will take cognizance;" (6) because said claim is a claim for unliquidated damages, not the subject of set-off in equity; and (7) because said claim for the conversion of the corn is a claim for a tort, not the subject of set-off in equity. Upon the submission to the chancellor, for decree on these demurrers, the chancellor sustained all of the demurrers; and the complainants now prosecute this appeal, and assign this decree as error.

Code Ala. § 2678, provides that mutual debts, liquidated or unliquidated demands, not sounding in damages merely, subsisting between the parties at the commencement of the suit, may be set off, one against the other, by the defendant or his legal representatives.

Humes, Walker, Sheffey & Gordon, for appellants.

R. C. Brickell, for appellees.

McCLELLAN J.

This case has been twice before this court on appeals, by the complainants and defendants, respectively, from decrees of the chancery court on demurrers to the bill. Smith v. Conner, 65 Ala. 371; Conner v. Smith, 74 Ala. 115. On the last appeal, the averments of the bill as to the items of credit claimed by the complainants against the mortgage debt were held to be insufficient. A state of the testimony indicated by the bill and exhibits was also adverted to by this court, and held to render the bill multifarious, assuming that the facts indicated would be the proof in the case. And the decree below, sustaining demurrers and dismissing the bill in vacation, without allowing complainants an opportunity to amend, and on this ground solely, was held erroneous, and reversed, and the cause remanded. In the further progress of the case, the bill was amended so as to obviate the objection for multifariousness, to specify the credits claimed originally by the grantor of the complainants, and to allege that these claims had been transferred and assigned by him to the complainants before the sale of the property, sought to be redeemed, by the trustee under the mortgage. The amendments further aver that complainants have ever since owned, and still own, said claims, and that before said sale they notified the trustee of their ownership of the equity of redemption, and these items of credit, and their claim that nothing was used on account of the indebtedness secured by the instrument. The original bill was filed February 17, 1877. The amendments, since the case was last in this court, were filed on June 5, 1885, and July 30, 1887. To the last amendment it was demurred that its averments in re ard to the assignment by William H. Moore-the grantor in the deed of trust and of the complainants-of the claims he held against Smith to the complainants was a departure from the case made by the original bill, and repugnant to paragraph 9 of the amendment of June 5, 1885, to which it purported to be an addition; and to both amendments it was demurred that the claims and demands relied on to reduce or liquidate the debts secured by the deed of trust were barred by the statute of limitations, and that the claims were for unliquidated damages in such sort that they could not be the subject of offsets against the mortgage debt. These several demurrers were sustained, and from the decree in that behalf this appeal is prosecuted.

In considering the first assignment of demurrer, that paragraph 4 of the last amendment "is a departure from the case made by the original bill, and the several former amendments made thereto," it is to be steadily borne in mind that the claims therein referred to have been in the case and relied on by the complainants from the beginning. Not only so, but the opinions of this court, on the former appeals have suggested no infirmity in these demands themselves, as foreshadowed in the earlier presentments of the case for the purposes for which they were brought forward, i.e., the reduction of the secured debt, but only that they were insufficiently stated. The complainants have always asserted the right to have these claims applied to the reduction of the charge upon their lands, or as payments pro tanto of the sum claimed by Smith. It is true, these counter-claims accrued to...