Dean v. Roberts

• Decision Date: 23 January 1913
• Citation: 62 So. 44,182 Ala. 221
• Parties: DEAN v. ROBERTS et al.
• Court: Alabama Supreme Court

62 So. 44

182 Ala. 221

DEAN v. ROBERTS et al.

Supreme Court of Alabama

January 23, 1913

On Application for Rehearing, April 23, 1913

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Suit by Edward E. Dean against A.C. Roberts and others. From the decree rendered, complainant appeals. Reversed and rendered in part and remanded in part.

Harsh Beddow & Fitts, of Birmingham, for appellant.

Tillman Bradley & Morrow and L.C. Leadbeater, all of Birmingham, for appellees.

DE GRAFFENRIED, J.

The following extract from the testimony of the only living member of the defendant partnership, viz.: "Mr. Dean said, 'Now, men, you-uns has got all my papers, and I ain't got no more show than a rabbit, but I believe you-all will do what's right about it' "--coupled with the marked difference between the answer of the respondents as originally filed and their answer as amended, has not been without effect in the determination of this cause by this court.

In the fall or winter of 1902 John J. Walker conveyed to A.C Roberts about 100 acres of land in Jefferson county. The consideration of this conveyance was a conveyance made by Edward E. Dean to said John J. Walker to 187.60 acres of land in the state of Texas, and $1,000 in money. The deed from Edward E. Dean to said Walker bears date September 29, 1902 and recites a cash consideration of $3,500. The $1,000 was paid in money, $500 by A.C. Roberts, and $500 by Robert E. Boyle. Roberts and Boyle were partners in the real estate business in Birmingham, and they claim that they bought for themselves the land from Walker; that Dean was very anxious for them to sell his Texas lands for him; that in their negotiations with Walker for the purchase of his lands they were able to work Dean's land off for him on Walker, who desired to move to Texas, by swapping Walker the Dean lands in Texas for the Walker lands in Jefferson county, and by paying Walker, as boot, said sum of $1,000. Roberts and Boyle further claim that they fully informed Dean of the manner in which they could thus dispose of his land, and that they would make the trade, provided he (Dean) would accept $500 for his Texas land and allow them to pay him the $500, less a commission for selling his land for him, when they were able to dispose of the Walker lands. In other words, according to the contentions of Roberts and Boyle, Dean agreed to take $500 for his Texas lands, less the commission for selling them, and was not to get that until the Walker lands were disposed of by Roberts and Boyle. They also claim that they knew nothing of the title of Dean to his Texas lands, and that, to avoid any liability as warrantors of the title to said lands, they had Dean to execute a deed, with covenants of warranty as to title, conveying the Texas lands direct to Walker in fee simple. While Roberts and Boyle claim that they were only to pay Dean $500 for said Texas lands, and that only when the Walker lands were sold by them, the deed from Dean to Walker recites a cash consideration of $3,500 paid by Walker to Dean. The deed from Dean to Walker was prepared, according to the contention of Roberts and Boyle, under their direction, and the consideration of $3,500 expressed in that deed was placed, according to their contention, in said deed in accordance with their wishes. It is not contended that Walker, the purchaser of the Texas lands, directed that the deed from Dean to him to said lands should express the above consideration; and why, if the truth, as to this transaction is as Roberts and Boyle claim it to be, they desired Dean to express in his deed to Walker a cash consideration of $3,500, when in fact he was only to receive $500 at some future day, we are not satisfactorily informed by the evidence upon which this cause was submitted.

Dean, who is a cripple, lived in Birmingham. So did Roberts and Boyle. Walker lived near Bessemer, which is 10 or 12 miles from Birmingham. The negotiations for the purchase of the Walker lands were conducted by Roberts and Boyle, with Walker either in Bessemer or at Walker's home, which was on the said Walker lands, not far from Bessemer. The deed from Dean to Walker and the $1,000 were delivered by Roberts to Walker at Walker's home on the Walker lands on the day after Dean executed and delivered to Roberts and Boyle the above deed conveying the Texas lands to Walker. When Dean delivered said deed to Roberts and Boyle they gave him no paper, no writing, or other kind of evidence of their alleged agreement with him. They simply took his deed to Walker, which conveyed all the land which he appears to have owned in the world, and left him with an alleged verbal promise to pay him, at some future day, $500. When Dean left Roberts and Boyle's office on the occasion named his land in Texas was gone. It was then--just as Dean was leaving the office of Roberts and Boyle--that, according to the evidence of Roberts: "Mr. Dean said, 'Now men, you-uns has got all my papers, and I ain't got no more show than a rabbit, but I believe you-all will do what's right about it.' That was before Walker made the deed to me (Roberts), but when Dean had made the deed to Walker and delivered it to me." The day after Dean made the above statement, Roberts, as we have already said, delivered the deed and the $1,000 to Walker, and Walker delivered to Roberts a deed conveying the Walker lands to Roberts. This deed from Walker to Roberts was never recorded, and all that we know of the consideration which is expressed in the deed from Walker to Roberts is the statement of Walker that, "My land in Alabama was placed at $3,500." Shortly after Roberts obtained the above deed from Walker he conveyed to C.L. Dabbs 39 1/2 acres of said land in consideration of $250 in money and a deed to 80 acres of land, which was sold shortly thereafter for $800, so that, in reality, Roberts and Boyle actually received in lands and money $1,050 for said 39 1/2 acres

of land. Subsequently the said Boyle conveyed 28 other acres of said Walker lands to said Dabbs, upon a consideration recited in the deed of $660. This amount, Dabbs testifies, was paid to Roberts in cash.

We have above given the side of Roberts and Boyle to this transaction, and we will now give the contention of said Edward E. Dean.

Dean claims, and on this subject he is corroborated by all the witnesses, that he opened negotiations with Walker direct some time before he ever mentioned the matter in any way to Roberts and Boyle. He seems to have learned that Walker intended to move to Texas, and he saw Walker and told him that he owned the above-mentioned lands in Texas, and indicated that he would be glad to swap him the lands in Texas for the Walker lands in Jefferson county. He further claims that while these negotiations were pending he saw Roberts and Boyle as real estate agents, and engaged their aid as such agents toward making the trade with Walker. On this subject there also seems to be no serious dispute between the parties. Dean also claims, and in this he is also corroborated by all the witnesses, that he took Roberts with him to see Walker and the Walker lands, and talked with Walker in Roberts' presence about the proposed exchange. From this point there is a broad divergence in the testimony of Dean on the one hand and of Roberts on the other, but in some material ways, Dean, as we will hereafter point out, is strangely corroborated by Roberts, and those corroborative statements or admission of Roberts tend strongly to show that Dean's version of this matter is the true version, and in this, as in all controversies, the truth should control. Dean claims that Roberts and Boyle continued to represent him that, as his agents, he disclosed to them his desire to dispose of his Texas lands and his willingness to compensate them for aiding him in so doing, and that Roberts and Boyle continued their negotiations with Walker until they finally reported to him that Walker would make him (Dean) a deed to his said lands, provided Dean would convey to him (Walker) the lands in Texas and pay him $1,000 as boot. Dean further claims that he informed Roberts and Boyle that he was willing to make the trade provided he could raise the money, and that Roberts and Boyle agreed to lend him the money at 8 per cent. per annum, secured by a first mortgage on the Walker lands. Dean claims that he agreed to this, and that (as we understand the testimony) Roberts and Boyle were to try to find him a purchaser for the Walker lands, and when they did so, they could, if they desired, call in their loan of $1,000, and also retain out of the proceeds of the sale a sum sufficient to compensate them for their entire services. Dean claims that, acting on the above representations on the part of Roberts and Boyle as his agents, and under the agreement with them as to the payment of the $1,000 he executed the deed to Walker, and delivered it to Roberts and Boyle with the understanding that they were to deliver it to Walker upon the delivery by Walker of a properly executed deed conveying to him (Dean) the Walker lands. Dean further claims that after he delivered the deed to Roberts and Boyle they represented that a hitch had occurred in the negotiations, but that they hoped to ultimately put the deal through, and that, relying upon their representations, he left the matter entirely with them, and that he did not learn that Walker had made a deed conveying the lands to Roberts until after Walker left for Texas in the latter part of the year 1902, or in the early part of 1903. Dean further claims that shortly after Walker left for Texas he called on Roberts, and that Roberts then, for the first time, admitted that the trade had been made, and claimed that the deed had been filed for record in the...