Dykes v. Bottoms

• Decision Date: 15 June 1893
• Parties: DYKES v. BOTTOMS.
• Court: Alabama Supreme Court

13 So. 582

101 Ala. 390

DYKES v. BOTTOMS.

Supreme Court of Alabama

June 15, 1893

Appeal from chancery court, Dale county; John A. Foster, Chancellor.

Bill by James Bottoms aginst James E. Dykes to enforce a vendor's lien. From a decree for plaintiff, defendant appeals. Reversed.

The bill in this case was filed by James Bottoms against James E Dykes, and sought to enforce a vendor's lien. On the submission of the cause for decree, on pleadings and proof and upon the report of the register, the chancellor granted the relief prayed for, and decreed that the complainant have a vendor's lien, and refused to allow the defendant an abatement for the five acres of land which was shown by the report of the register to have been owned and occupied by some one else at the time of the execution of the deed to the defendant. The defendant prosecutes this appeal, and assigns the decree of the chancellor as error.

H. H Blackman, for appellant.

Borders & Carmichael, for appellee.

COLEMAN J.

James Bottoms, appellee, filed the present bill to enforce a vendor's lien for unpaid purchase money due for land sold to respondent. The bill describes the land sold as being the "S. W. 1/4 of N.E. 1/4, and N.W. 1/4 of the S.E. 1/4 and the S. 1/4 of the N.E. 1/4, of Sec. 29, T. 7, range 25, containing one hundred and sixty acres, more or less, situated in the county of Dale," etc. This description shows a sale of only 100 acres. Three portions are mentioned, but the last 40 acres, to wit, the S. 1/4 of N.E. 1/4, includes 20 acres described in the first 40, to wit, the S.W. 1/4 of N.E. 1/4 of section 29. No objection seems to have been taken to this omission, and it may be clerical error in the transcript. The defendant, by his answer, pleads usury, and also a deficiency in the quantity of land sold and purchased and that conveyed by the deed of conveyance with warranty of title. The answer prays for an abatement of the purchase price, both on account of usury and breach of warranty. The deficiency is claimed to consist of five acres, a part of section 29, conveyed, and six acres in section 28, which latter six acres is omitted entirely from the bill of complaint. The answer set up as a fact that respondent has never been in possession of the eleven acres of land for which an abatement is claimed, and that he has not been able to acquire possession, by reason of the occupation by others, (whose names are given,) of said eleven acres of land, who are in possession, and holding, the answer avers, under a title superior to that acquired by purchase and deed received from complainant. There was no action by the court upon objections to testimony. The objections in many instances were not sufficiently specific, and might have been disregarded. Section 1798 of the Code declares when conveyances are self-approving, and when a transcript may be admitted in evidence. Copies of conveyances not acknowledged and recorded are not admissible, without the proper predicate, accounting for the absence of the original. After the evidence was closed, the court referred to the register to ascertain and report as to whether there was usury in the transaction, and whether there had been a breach of the warranty in the deed of conveyance to respondent. These were questions under our practice which should have been decided by the chancellor, and should not have been referred to the register. Our conclusion from the evidence is that the transaction was not usurious.

It appears that there was a parol agreement for the sale and purchase of the land, at the purchase price of $900 or $950 for cash, and that under this agreement the respondent entered upon the possession. No part of the purchase money was paid. This agreement was void, under the statute of frauds. After having been in possession some months, the respondent informed the complainant that he could not pay for the land in cash. It was then agreed that respondent might purchase the land by paying one part in cash, and by executing his two notes for the unpaid purchase money, at one and two years; and the difference in the value of the land for cash, as was first agreed upon in parol, and when sold on a credit, and which latter agreement was concluded in writing, was 15 per cent. The complainant executed his warranty deed to respondent and the respondent executed his two promissory notes. This was not usury. Respondent owed no debt for the forbearance...