Downing v. Woodstock Iron Co.

• Decision Date: 09 April 1891
• Citation: 9 So. 177,93 Ala. 262
• Parties: DOWNING v. WOODSTOCK IRON CO.
• Court: Alabama Supreme Court

9 So. 177

93 Ala. 262

DOWNING v. WOODSTOCK IRON CO.

Supreme Court of Alabama

April 9, 1891

Appeal from chancery court, Calhoun county; S. K. MCFADDEN Chancellor.

The bill in this case was filed by W. P. Downing against the Woodstock Iron Company, and prayed to have a deed absolute in form declared a mortgage, and that the plaintiff be let in to redeem the land in controversy. The chancellor dismissed the bill of the complainant. Code Ala. § 2765, provides that neither party to a suit shall be allowed to testify against the other, as to any transaction with any deceased person who acted in any representative or fiduciary relation whatever to the party against whom such testimony is sought to be introduced, unless called to testify by the opposite party. Plaintiff appeals.

Brothers, Willett & Willett, for appellant.

Knox & Bowie, for appellee.

McCLELLAN J.

J. & W. W. Draper purchased the land in controversy at a sale made under a decree of the chancery court enforcing a vendor's lien in favor of Alexander against one Harrison, the vendee, and W. P. Downing, the vendee of Harrison. The price paid was $220, being the amount of said decree and costs, and the balance due the purchasers on a mortgage covering the land, executed by Downing to them. The purchasers took the register's deed, and satisfied their mortgage. Soon afterwards the Woodstock Iron Company, acting through its secretary and treasurer, Samuel Noble, paid the Drapers $200 for the land, and took a quit-claim deed absolute in form. All this occurred early in the year 1878. The present bill was filed by Downing, March, 14, 1889, for the purpose of having the deed from Draper to the Woodstock Iron Company declared a mortgage from him to said company, for an account ascertaining the amount due thereon, and for redemption therefrom. It is alleged that the Drapers, as a concession to Downing, in appreciation of the hardship it was on him to have to pay a balance of purchase money due the original vendor after having fully paid his immediate vendor, agreed to abate their claim to the extent of $20, and to allow redemption on payment of the balance of $200; that Downing borrowed the money necessary to avail himself of this proposition from the Woodstock Iron Company, and, to secure the repayment of it, the company took a quit-claim deed from the Drapers, and agreed that Downing should have all the time he wanted to repay the principal, provided he would pay 10 per cent. interest thereon annually. The purchase or redemption money was paid directly by the company to the Drapers. Waiving all other considerations for the present, it will first be discussed whether the agreement between the complainant and the defendant, relied on to give to the absolute deed from the Drapers to the Woodstock Iron Company the character of a mortgage from the complainant to the defendant, is supported by the evidence. It has been over and over again said by this court that, to entitle a complainant to the relief here prayed, the testimony going to establish the essential facts must be consistent, strong, and convincing. 2 Brick. Dig. pp. 271, 272, §§ 318, 323-329; 3 Brick. Dig. p. 659, § 384; Knaus v. Dreher, 84 Ala. 319, § South. Rep. 287, and citations.

The agreement, if any was made, was a verbal one. It was made, if at all, between Downing and Samuel Noble as treasurer and secretary of the defendant corporation. Noble died before the filing of the bill. Having acted in this matter as a fiduciary representative of the Woodstock Iron Company, the testimony of the complainant himself, offered to prove...