Corley v. Vizard

• Decision Date: 27 November 1919
• Docket Number: 5 Div. 721
• Citation: 203 Ala. 564,84 So. 299
• Parties: CORLEY v. VIZARD et al.
• Court: Alabama Supreme Court

84 So. 299

203 Ala. 564

CORLEY v. VIZARD et al.

5 Div. 721

Supreme Court of Alabama

November 27, 1919

Rehearing Denied Dec. 24, 1919

Appeal from Circuit Court, Coosa County; Ray Rushton, Special Judge.

Bill by W.J. Corley against William Vizard and others to require respondents to convey a one-half undivided interest in the mineral right in certain lands or to cancel deed for fraud. From a decree dismissing the bill and denying relief complainant appeals. Affirmed.

L.H Ellis, of Columbiana, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellees.

This appeal was submitted under rule 46 (65 South. vii) Supreme Court Practice, and the opinion of the court delivered by

THOMAS J.

The purport of the bill is that complainant was to reserve in the deed to respondents mineral interests in the lands conveyed, which interest was excepted from the sale by a prior or contemporaneous verbal agreement. It is without dispute that the interests so conveyed were purposely inserted in the deeds by agreement of the parties to this suit. Complainant insists that such interests were included in the deeds in reliance upon the agreement of respondents' agent, to the effect that respondent would reconvey to him such reserved interests. This agreement being prior to, or contemporaneous with, the execution and delivery of the conveyances, the effect of the insistence now made is to permit complainant to show by parol evidence that the several deeds and covenants therein were purposely made to embrace and extend to lands not actually sold and that the quantum of estate conveyed and warranted be varied by parol evidence.

Well-recognized exceptions to the general rule forbidding written instruments to be varied by parol are (by virtue of the statute) that contracts for loans may be shown to be usurious (Lewis v. Hickman, 200 Ala. 672, 77 So. 46; Bates v. Crowell, 122 Ala. 611, 25 So. 217); that the true consideration of the instrument and the date of execution and delivery may be shown (Formby v. Williams, 81 So. 682, 687); and that a deed in form may be shown to be a security for debt. The application of the rule to this last exception has not been entirely uniform. For example: The earliest case involved a bill of sale to slaves, unaccompanied by a stipulation as to reconveyance, and the admissibility of parol evidence was affirmed without qualification. Such testimony was admitted to convert the instrument into a mortgage, by proving that the parties intended it to operate only as security, in Hudson v. Isbell, 5 Stew. & P. 67, 75. In English v. Lane, 1 Port. 328, 352, 353, the court said: "Where there has been a breach of trust, or a fraud committed by setting up a conveyance as an absolute sale, in violation of a parol agreement, expressed and understood between the parties at the same time, that it should operate only as a mortgage, it will be sustained as a mortgage; and this, notwithstanding the answer positively deny the parol agreement, provided it be sufficiently proved, and the mortgagor or vendor has not participated in the fraudulent intent."

By a later case, the admissibility of parol evidence to show whether a contract in writing is a mortgage or conditional sale, the same containing a written stipulation as to reconveyance, was asserted without qualification. Eiland, Adm'r, v. Radford, 7 Ala. 724, 726, 42 Am.Dec. 610. Later the position was taken that the unrestricted doctrine may not be applied in equity to a conditional sale. McKinstry v. Conly, 12 Ala. 678; Freeman v. Baldwin, 13 Ala. 246.

It has been said that the distinction thus predicated between such classes of transactions has been abandoned in later cases in which the court, without expressly overruling or even referring to its previous decisions, has assumed that contracts which include stipulations as to reconveyance are within the scope of the unrestricted doctrine. Locke v. Palmer, 26 Ala. 312, 324; Brantley v. West, 27 Ala. 542, 552; West v. Hendrix, 28 Ala. 226; Pearson v. Seay, 38 Ala. 643, 646; McNeill v. Norsworthy, 39 Ala. 156, 160; Douglass v. Moody, 80 Ala. 61; Perdue v. Bell, 83 Ala. 396, 3 So. 698; Kramer v. Brown, 114 Ala. 612, 615, 21 So. 817; Rose v. Gandy, 137 Ala. 329, 332, 34 So. 239; Hubert v. Sistrunk, 53 So. 819. Cases in which that doctrine has been applied with reference to contracts in which no such stipulations were included are: Robinson v. Farrelly, 16 Ala. 472; Parish v. Gates, 29 Ala. 254, 261; Harris v. Miller, 30 Ala. 221, 224; Sewell v. Price's Adm'r, 32 Ala. 97, 98; May v. May's Adm'r, 33 Ala. 203, 205; Wells v. Morrow, 38 Ala. 125, 128; Turner v. Wilkinson, 72 Ala. 361, 365; Rapier v. Gulf City Paper Co., 77 Ala. 126; Glass v. Hieronymus Bros., 125 Ala. 140, 147, 28 So. 71, 82 Am.St.Rep. 225; Harper v. Hayes Co., 149 Ala. 174, 179, 43 So. 360; Harrison v. Maury, 157 Ala. 227, 229, 47 So. 724; Tribble v. Singleton, 158 Ala. 308, 310, 48 So. 481; Copenny v. Southern Realty Co., 174 Ala. 378, 56 So. 721; Sewell v. Buyck, 162 Ala. 496, 50 So. 127; Reeves v. Abercrombie, 108 Ala. 535, 19 So. 41; Lewis v. Hickman, supra; Sewell v. Holley, 189 Ala. 121, 66 So. 506. In the following cases where parol evidence was received in actions at law, this court did not advert to the question of its competency: Sewall v. Henry, 9 Ala. 24 (detinue by vendee in bill of sale to recover personal property after the expiration of the time allowed by statute for redemption of a mortgage); Hopkins v. Thompson, 2 Port. 433 (same action); Logwood v. Hussey, 60 Ala. 417 (action to recover personalty). But in the several cases in which the point has been discussed on the admissibility of parol evidence in actions at law, such evidence has been declared inadmissible. Shriner v. Meyer, 171 Ala. 112, 116, 55 So. 156, Ann.Cas.1913A, 1103; Bragg v. Massie's Adm'r, 38 Ala. 89, 106, 79 Am.Dec. 82; Jones v. Trawick's Adm'r, 31 Ala. 253, 258; Hartshorn v. Williams, 31 Ala. 149. In Bates v. Crowell, supra (in equity, on demurrer), the bill was based upon the ground that parol evidence was not admissible in a court of law to vary an executory contract for sale of personal property, and it was held that the bill contained equity and demurrer properly overruled. For general authorities, see L.R.A.1916B, 29 et seq.

It may be observed of this last exception that the ground on which a court of equity permits parol testimony to show a conveyance absolute on its face to be a mortgage, or was executed upon certain parol conditions or trusts, is that to deny such right on parol evidence would be a fraud to allow the grantee to hold the property discharged of the conditions or trusts, which, by his consent, would attach to the conveyance and which he has agreed to fulfill, and in equity and good conscience should fulfill. Kennedy's Heirs & Ex'rs v. Kennedy's Heirs, 2 Ala. 571; Chapman v. Hughes, 14 Ala. 218; McKinstry v. Conly, supra; Sewell v. Price's Adm'r, supra; Knaus v. Dreher, 84 Ala. 319, 4 So. 287; Richter v. Noll, 128 Ala. 198, 30 So. 740; Sewell v. Buyck, supra.

It may be of interest to observe that this doctrine was given expression by Lord Hardwicke in Baker v. Wind (1748) 1 Ves.Sr., 160. Parol evidence is admitted in such cases "on the ground that the court has power to rectify the instrument, and that it would be a fraud to insist on the absolute form of the instrument if it were only intended to be a security for money." Mandell v. Thomas, 1 Q.B. 230.

We have been unable to find a case similar to that made by the instant bill. However, there are analogous decisions by our court. In Thompson, etc., Co. v. Glass, 136 Ala. 648, 654, 33 So. 811, an action of assumpsit, where promises to repair real property were made before the lease, not being independent of and collateral to the lease, though a part of the bargain to rent, it was held that parol evidence thereof was not permissible to vary the written lease. In Burroughs v. Pate, 166 Ala. 223, 227, 51 So. 978, where a parol reservation of property conveyed was made "prior to or contemporaneous with the execution of an absolute conveyance," held to be merged in such conveyance, its legal effect was denied qualification by parol so as to make the estate conveyed commence in futuro, or "so as to limit or restrict the use or enjoyment of the property conveyed." Wright v. Graves, 80 Ala. 416; Williams v. Higgins, 69 Ala. 517. In Able v. Gunter, 174 Ala. 389, 393, 57 So. 464, specific performance of a bond for title providing only for the payment of specific sums of money was sought, and it was sought to show by parol evidence that it was agreed between the parties that the vendor should have the rent from the place until the entire purchase price was paid; held inadmissible to show such fact by parol, though it was a part of the consideration of the contract, since the legal effect would be to vary the written contract, and in the absence of express agreement (in the written contract) "the vendee was entitled both to the possession of the land and the rent." In the earlier cases of Moody v. McCown, 39 Ala. 586, 594 (limitations of written partition made of decedent's real property), and Holley v. Younge, 27 Ala. 203 (covenantor against incumbrance agreed to satisfy a vendor's lien), such limitations were not permitted to be shown by parol, and it was said that a covenant cannot be varied by a prior or contemporaneous parol agreement of the parties. Holt v. Moore, 5 Ala. 521; Litchfield v. Falconer, 2 Ala. 280; Sommerville v. Stephenson, 3 Stew. 271; Duouy v. Gray, Minor, 357. The general authorities are collected in L.R.A.1916E, 221.

Our conclusion is that the better considered cases are to the effect that though the true consideration of a conveyance may be shown by parol evidence of an agreement made...