Cook v. Benton, 2 Div. 230.

• Decision Date: 30 October 1947
• Docket Number: 2 Div. 230.
• Citation: 33 So.2d 877,250 Ala. 259
• Parties: COOK v. BENTON et al.
• Court: Alabama Supreme Court

33 So.2d 877

250 Ala. 259

COOK v. BENTON et al.

2 Div. 230.

Supreme Court of Alabama

October 30, 1947

Rehearing Denied Feb. 26, 1948.

Pitts & Pitts and Wilkinson & Wilkinson, all of Selma, and Hugh A. Locke, of Birmingham, for appellant.

Clifton C. Johnston, of Marion, for appellees.

The contract or agreement executed by the parties contemporaneously with the execution and delivery of the conveyance is as follows:

'This contract made and entered into on this the 12th day of March 1941, between Margaret H. Benton and husband Harmon Benton parties of the first part, and T. E. Cook, party of the second part. Witnesseth----

'That whereas, on this day Margaret H. Benton and husband Harmon Benton have sold and conveyed to T. E. Cook those lands in Perry and Marengo Counties, Alabama, described as follows, to-wit: * * *

'And whereas, said lands are under mortgage from parties of the first part, to the Federal Land Bank of New Orleans Louisiana and the Land Bank Commissioner of New Orleans, Louisiana, and said loans were in default, and the Federal Farm Mortgage Corporation, the owner of the Land Bank Commissioner loan, had advertised the above described lands for sale, under its mortgage, and, parties of the first part was unable to pay the delinquent amounts due on said two mortgages and party of the second part agreed to and with the parties of the first part that he would pay the delinquent amounts due on said two mortgages for parties of the first part upon the following agreements, and covenants and conditions:

'1. That parties of the first part would execute and deliver to the party of the second part their warranty deed to the above described lands, and all of Margaret H. Benton's share of stock in the Federal Land Bank of New Orleans, Louisiana.

'2. That the party of the second part would be put into immediate possession of said lands by parties of the first part and have the right to the use, occupancy and rents, issues and emoluments of said lands, including the parties and rentals accruing to the same from the United States Department of Agriculture for the year 1941. Party of the second part to have the sole possession of said property, save and except the dwelling house and curtilage thereto and ten (10) acres of land the exact description of which shall be agreed on between the parties hereto, until the 11th day of March, 1942, without paying party of the second part any further consideration therefor.

'3. That parties of the first part, at any time between now and the 11th day of March, 1941 and upon paying to the party of the second part the sum of $520.63 together with the interest from date, at the rate of six per cent. per annum, shall be entitled to and the party of the second part shall with his wife, execute and deliver

to Margaret H. Benton or any person whom she may designate, a warranty deed to the above described land, subject to the two mortgages on the same, one to the Federal Land Bank and the other to the Land Bank Commissioner, both of New Orleans, Louisiana.

'Should, however, Margaret H. Benton, or any one for her at her request, pay to the party of the second part, the sum herein agreed to be paid to him at any time on or before the 15th day of December, 1941, said party of the second part is to remain in possession of said above described lands, with the right to all the rents, emoluments and earnings thereon, until the 15th day of December, 1941, in addition to the said sum of $520.63, with the interest thereon.

'4. Should Margaret H. Benton, at any time after the 15th day of December, 1941, and before the 11th day of March, 1942, pay said $520.63 with the interest thereon, to the party of the second part, then he shall within ten (10) days from said payment deliver possession of the above described lands to Margaret H. Benton or any one else that she might designate.

'5. That should party of the second part, at any time pay any taxes or annual amounts due on said mortgages to the Federal Land Bank or Land Bank Commissioner, then the amounts so paid for taxes and the amount or amounts so paid on said mortgages shall also be paid to the party of the second part, with the interest thereon before party of the second part executes and delivers to Margaret H. Benton or any one whom she might designate, a warranty deed conveying said lands to her or the person or persons she might designate, subject to said two mortgages, one to the Federal Land Bank and the other to the Land Bank Commissioner, both of New Orleans, Louisiana.

'In Witness Whereof parties of the first and second parts hereto set their hands and seals in duplicate this the day and date above written.'

LIVINGSTON, Justice.

This litigation was commenced on March 6, 1942, by bill of complaint filed in the Circuit Court, in Equity, of Perry County, by Margaret H. Benton and Henry W. Hudson against T E. Cook. The bill sought specific performance of a contract to convey lands, or, in the alternative, to have a deed conveying the lands involved from Mrs. Benton to Cook, and a contract executed contemporaneously therewith declared a mortgage, and to redeem. It was alleged that the complainant Henry W. Hudson had purchased all of the right, title and interest of complainant Margaret H. Benton in and to the lands involved.

On former appeal we held that the trial court correctly overruled demurrers to the bill as a whole, and to each aspect thereof. Cook v. Benton et al., 245 Ala. 683, 18 So.2d 405.

Later complainants amended their bill, alleging that respondent Cook...