Enslen v. Allen

• Decision Date: 22 April 1909
• Citation: 160 Ala. 529,49 So. 430
• Parties: ENSLEN ET AL. v. ALLEN.
• Court: Alabama Supreme Court

49 So. 430

160 Ala. 529

ENSLEN ET AL. v. ALLEN.

Supreme Court of Alabama

April 22, 1909

Rehearing Denied May 11, 1909.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Action by D. F. Allen against Della W. Enslen and others to compel specific performance and for an accounting. From a decree overruling a demurrer to the bill, respondents appeal. Affirmed.

George W. Huddleston, for appellants.

Sam Will John, for appellee.

SAYRE J.

On September 10, 1895, Della W. Enslen and D. F. Allen entered into an agreement for the purchase of a certain lot in the city of Birmingham, and did purchase the same, for the common benefit of the parties, title to be taken in Mrs. Enslen with an agreement to convey a half interest to complainant Allen when he should have paid his part of the purchase money. The lot was at the time under mortgage to Mrs. Lowry for $6,000 and it was the understanding of the purchasers that this or some substitutionary lien upon the property should be continued indefinitely. Of the first payment of $750, Mrs. Enslen contributed $637.50, the complainant the balance. It was agreed that Eugene F. Enslen husband of Mrs. Enslen, should collect the rents and apply the same on purchase payments, taxes, insurance, etc., until payments between the purchasers were equalized, when complainant should become entitled to a conveyance of a half interest. It was also agreed that whenever, within two years, complainant should pay one-half of the purchase money, not including the mortgage, he should have a conveyance. This time was subsequently extended to October 7, 1898. The bill alleges the receipt of rents by Enslen for his wife, except $237.50, which was received by complainant. It does not appear that complainant made further payment. The bill, filed March 1, 1899, alleges that the mortgage was foreclosed under power by Mrs. Lowry on January 26, 1898, and the property purchased by one Barnard, who was acting on the procurement of Eugene Enslen, who paid the money and immediately received a conveyance from Barnard. Both before and after the mortgage foreclosure complainant demanded of Eugene Enslen an accounting of the rents, and offered to make payment of the amount due to Mrs. Enslen if Eugene would state the account. It is alleged that Eugene Enslen conceived a plan to deprive complainant of all interest in the property wrongfully and without compensation, and that he "arranged" for a foreclosure of the mortgage held by Mrs. Lowry. The preliminary recital of the agreement refers to the contract as an agreement between Mrs. Enslen and complainant. Eugene Enslen joined in its execution. Such obligations as were assumed by him are to be found in that clause of the contract in which it was agreed that he should collect the rents, etc., already noted, and a clause as follows: "It is also agreed that Eugene F. Enslen, the husband of Della W. Enslen, party of the first part, hereby gives his consent for his said wife to make this contract and obligates and binds himself to give his assent and concurrence by joining here in a deed to be executed in compliance with the above agreement." These are the facts, according to our conception, upon which the equity of the bill depends.

If this bill were filed against Mrs. Enslen alone, it could not progress to a decree for a conveyance by her to the complainant, for the reason, appearing on the face of the bill, that she has no title to convey. A court of chancery cannot decree specific performance of an agreement to convey property to which defendant has no title, even though the want of title has been caused by the defendant's own act as by his conveyance to a bona fide purchaser. Kennedy v. Hazelton, 128 U.S. 667, 9 S.Ct. 202, 32 L.Ed. 576; Fitzpatrick v. Featherstone, 3 Ala. 40. Where, however, a conveyance has been made in fraud of the complainant's right to specific performance, the grantee being a party to the fraud, the transaction will be avoided, the fraudulent grantee divested of his title, and a conveyance compelled in compliance with the grantor's contract. Manning v. Pippen, 86 Ala. 357, 5 So. 572, 11 Am. St. Rep. 46; Kent v. Dean, 128 Ala. 600, 30 So. 543. At the time when the contract was entered into the defendant Eugene Enslen had no title, it was not contemplated that he would acquire title, nor did he enter into any engagement to convey title. The intent of his undertaking was to give his assent and concurrence by joining with his wife in a deed to be executed by her in compliance with her agreement. The equity of the bill as against him must rest upon the proposition that he acquired title in fraud of the complainant's right, and so must be treated as a trustee for the complainant. This, in turn, depends upon the theory that when he undertook to act as the agent of his wife and complainant to collect and manage the rents and apply the same on purchase...