Cousins v. Crawford

• Decision Date: 26 February 1953
• Docket Number: 6 Div. 260
• Citation: 63 So.2d 670,258 Ala. 590
• Parties: COUSINS v. CRAWFORD et al.
• Court: Alabama Supreme Court

Page 670

63 So.2d 670

258 Ala. 590

COUSINS v. CRAWFORD et al.

6 Div. 260.

Supreme Court of Alabama.

Feb. 26, 1953.

Rehearing Denied March 26, 1953.

Henry H. Mize, Jonas Spiro, Jr. and Mize & Spiro, all of Tuscaloosa, for appellant.

Ward & Ward, Tom B. Ward and Tom B. Ward, Jr., all of Tuscaloosa, for appellees.

LAWSON, Justice.

In March, 1921, Annie B. Consins, a colored widow, referred to hereinafter as complainant, purchased the suit property, a house and lot situate in the City of Tuscaloosa.

Complainant's occupancy of the suit property began about three months after the purchase and continued up until this proceeding was instituted.

On or about January 13, 1926, complainant mortgaged the suit property to W. E. Hobson to secure an indebtedness of $550. The record on this appeal tends to show that this mortgage to Hobson was foreclosed and that S. J. Pearson was the purchaser. In any event, S. J. Pearson on, to wit, September 12, 1931, executed a deed conveying the suit property back to Annie B. Cousins for a recited consideration of $550.

On the same day that Pearson executed the deed to complainant, she mortgaged the suit property to Mrs. Mary W. Collins to secure an indebtedness of $233.56. Some part of the money borrowed by complainant from Mrs. Collins was used by her in obtaining the deed from Pearson.

In the latter part of 1931 the Tuscaloosa Roofing and Furnace Company put a roof on the house at a cost of $207.70. To secure the payment of the cost of the roof complainant on December 14, 1931, executed a mortgage on the suit property to the Tuscaloosa Roofing and Furnace Company.

Complainant paid the first installment due to the roofing company. She failed to make the other payments as they became due and solicited the aid and assistance of Henry B. Hanly, who was engaged in the loan business in Tuscaloosa and from whom she had borrowed money on short loans from time to time. Hanly operated a short loan business known as Liberty Investment Company and also made loans on real estate. On or about January 21, 1933, Hanly paid the roofing company the amount due it by complainant and on that day the mortgage to the roofing company was transferred for a cash consideration and without recourse to Hanly.

Complainant encountered difficulty in making her payments to Mrs. Collins and to Hanly and it was suggested to her by Mrs. Collins' agent that since Hanly held the roofing company mortgage, she might try to get him to pay off her indebtedness to Mrs. Collins. Complainant contacted Hanly in accordance with that suggestion. Hanly paid Mrs. Collins the amount then due her by complainant.

On February 21, 1933, complainant executed a mortgage to Henry B. Hanly on the suit property to secure an indebtedness of $327.84, with interest. Complainant received no money from Hanly at the time this mortgage was executed. The amount of the mortgage indebtedness was the total of the sums owed to Mrs. Collins and to Hanly on the roofing company mortgage. The record sufficiently shows that as a result of the execution of the mortgage of February 21, 1933, the indebtedness to Mrs. Collins was paid and the previous indebtedness to Hanly was included therein.

Complainant got behind with her payments on the indebtedness to Hanly secured by the mortgage of February 21, 1933. She was notified by Hanly that the mortgage would be foreclosed unless payments were made. The indebtedness not being paid, Hanly authorized and directed his attorney to proceed to collect the indebtedness or foreclose the mortgage. Complainant took the matter up with Hanly and his attorney and on or about March 5, 1934, in the office of Hanly's attorney, complainant executed an instrument which on its face is an absolute conveyance of the fee simple title to the suit property by complainant to Hanly. On the same day and as a part of the same transaction complainant and Hanly and the latter's wife entered into a written contract or agreement which is referred to by the parties as 'a bond for title,' which reads in material parts as follows:

'This indenture, made and entered into on this the 5th day of March, 1934, between Henry B. Hanly and wife, Maude B. Hanly, as parties of the first part, and Annie B. Cousins, as party of the second part,

'Witnesseth:

'1. That the said parties of the first part agree to sell to the party of the second part the following described real estate lying and being in the City of Tuscaloosa, County of Tuscaloosa, State of Alabama, to-wit:

(Description) for the price of Three Hundred Fifty and no/100 ($350.00) Dollars, being payable in monthly installments of $12.50, with interest from date,--the first installment being due on the 5th day of April, 1934, and a like sum of $12.50 on the 5th day of each succeeding month thereafter, until the said sum of $350.00, with interest has been fully paid, and each of said monthly installments is to be evidenced by a waiver promissory note of even date.

'2. Said second party shall have the privilege to pay the whole of said principal sum remaining unpaid at the time of making any monthly payment herein provided, with interest to date of payment.

'3. It is further mutually agreed by and between the parties hereto as follows:

'(a) That the said party of the second part covenants and agrees that time is of the essence of this contract, and that failure to do and perform any of the agreements agreed to be done or performed, or a failure to pay any one of said installments within thirty days after maturity of the same, then in that event the said parties of the first part shall have the option to declare this as null and void, and all rights of said party of the second part under this agreement shall at once terminate, and any and all payments made by said second party shall be treated as a reasonable rental to the date of said default or non-payment, and shall remain the property of said first parties, and this contract shall be declared void, and the said second party shall become, as to the property herein described, the tenant at will of said first parties.

'(b) That the party of the second part, her heirs and assigns agrees to pay Insurance, Taxes and all assessments on said property, including the 1933 taxes.

'(c) That the said parties of the first part agree, in case said second party shall be unable, by reason of being out of employment, resulting from ill health or other reasonable cause, to pay the installments as hereinbefore stipulated, to waive the right during such absence of employment (for a period not exceeding ninety days) to terminate this agreement as provided for in the preceding first clause hereof. Provided, however, that said parties of the first part shall be notified in writing within thirty days after first default, that said party of the second part is out of employment, and be furnished with satisfactory evidence thereof, and a statement of the cause therefor, and unless such notice in writing, is given to said party of the first part, then this stipulation extending the time of payment shall be void and of no effect.

'(d) The parties of the first part, upon the payment of all of said sum of $350.00 with the interest thereon, and upon the due and faithful performance of all of the agreements and covenants herein agreed to be done or performed, shall at the option of the party of the second part execute and deliver to the party of the second part a good and sufficient warranty deed of conveyance to said party of the second part to said property at the cost and expense of the parties of the first part.' (Emphasis supplied.)

At the same time complainant executed twenty-eight notes as provided in the written agreement, which notes were duly delivered to Hanly.

Hanly died testate on October 23, 1946, without having conveyed the suit property to complainant, although she had continued to occupy the premises.

Under the terms of Hanly's will, all of his property went to his wife, Maude Beatrice Hanly. Complainant continued to occupy the suit property.

On January 28, 1948, Maude Beatrice Hanly conveyed the suit property to her daughter, Jeane Hanly Crawford, by warranty deed wherein the consideration is expressed as 'love and affection and the sum of One and no/100 Dollars etc.' Complainant was still occupying the suit property and was told by Maude Beatrice Hanly that the latter had given the suit property to her daughter.

Within a comparatively short time after she received her deed to the property, Jeane Hanly Crawford advised complainant of her desire to sell the property and suggested that complainant get another place to live.

Complainant then consulted an attorney and this proceeding was instituted in the circuit court of Tuscaloosa County, in equity, on July 17, 1948.

By this proceeding complainant seeks to regain the legal title to the suit property. Respondents to the amended bill are Jeane Hanly Crawford and Maude Beatrice Hanly, in her individual capacity and as executrix of the last will and testament of Henry B. Hanly.

If we correctly understand the amended bill, complainant seeks to regain the legal title to the suit property on three separate and distinct theories.

She seeks to have the deed and the written agreement construed together and when so construed declared to constitute a mortgage and that she be allowed to redeem the suit property in an exercise of the equity of redemption.

Complainant seeks to have the deed of March 5, 1934, cancelled on the ground that the grantee therein, Henry B. Hanly, who had a mortgage on the suit property (February 21, 1933), caused complainant to execute the said deed of March 5, 1934, in lieu of the foreclosure of the said mortgage for an inadequate consideration by means of oppression, undue influence and fraud.

It is also prayed that a decree be rendered requiring respondents to specifically perform the written agreement of March 5, 1934, by conveying the suit property to complaina...