Francis v. White

• Decision Date: 30 June 1905
• Citation: 39 So. 174,142 Ala. 590
• Parties: FRANCIS ET AL. v. WHITE.
• Court: Alabama Supreme Court

39 So. 174

142 Ala. 590

FRANCIS ET AL. v. WHITE.

Supreme Court of Alabama

June 30, 1905

Appeal from Chancery Court, Morgan County; William H. Simpson Chancellor.

Suit by R. B. White, as administrator of the estate of C. C. Sheats deceased, against W. R. Francis and others. From a decree for plaintiff, defendants appeal. Affirmed in part, and in part reversed, rendered, and remanded.

It was averred in the bill that executions were issued against the said C. C. Sheats, and were levied upon certain specifically described lands; that said lands were sold under said execution, and the said W. R. Francis became the purchaser thereof, and the sheriff executed a deed to said Francis for said lands. The sixth paragraph of said bill relating to the possession of said lands by said Sheats is copied in the opinion. It was then averred in the bill that the said Francis had made no improvements on said lands, so far as the complainant knew; that the complainant had written to the defendant Francis making inquiry as to the value of any improvements that he may have made upon said lands, and was willing to pay therefor, and offered in his bill to do so that complainant had had no opportunity to treat with defendant Francis as to such improvements except by correspondence, and that defendant Francis had failed to answer complainant's letters; that complainant has been unable to make a tender to said Francis of the amount paid by him for said lands at said execution sale, and 10 per cent per annum thereon since said sale, together with all lawful charges, for the reason that the said Francis had been absent from the state for a number of months after said purchase and, before going, had stated his intention of remaining away until after a certain designated time, which was after the expiration of the time allowed the complainant to redeem said property from under the execution sale; that the complainant has written to the defendant Francis repeatedly since his departure, relative to his purpose to redeem said lands, and has addressed his letters, postage prepaid, to said Francis to the post-office address where he had gone, but has received no reply. The bill then contains the following averment: "The complainant hereby offers, tenders, and pays into court for the defendant Francis the sum of $283.35, the amount of defendant Francis's purchase at said execution sale, and the further sum of $56.67, being 10 per cent. interest on the amount paid by the defendant for said lands for two years, as well as the sum of $125.25, taxes paid, as far as complainant can ascertain, by defendant, on said lands since his purchase thereof; also, $13.20, interest on same. Complainant has by diligent inquiry ascertained that said defendant Francis has paid to the city of Decatur, Alabama, on the pro rata of part of said property, of the special assessment levied by the city authorities on the property of said town, the sum of $310.43, which is herewith tendered and offered to said defendant, as well as the further sum of $41.76, legal interest on the amount of said assessment." The bill, then continuing, avers that the complainant has diligently inquired and searched for information respecting the amount of lawful charges against said property held by the defendant Francis, but has been unable to ascertain them; that he is ready, able, and willing to pay all lawful charges which the defendant has or holds against said lands, and submits himself to the jurisdiction of the court; and further avers that he has been unable to ascertain the correct amount of lawful charges claimed by said defendant upon said lands, otherwise than has been above stated; and he tenders said amounts, and avers his willingness and readiness to abide the decree of the said court. It is then averred in the bill that subsequent to the purchase of the said lands by the said Francis he sold and conveyed to the defendant Nelson Campbell a certain designated portion of said lands, which is specifically described, and that subsequent to said purchase he sold and conveyed to the defendant Foster H. Pointer a certain portion of said lands, which is specifically described; that "the sales to said Campbell and Pointer so complicated the apportionment and redemption money as to render necessary a judicial investigation of the relative values of the parcels so conveyed, as compared with the whole, and to adjudicate the part, if any, of the purchase money tendered and paid into court by the complainant, to be awarded to the said Pointer and the said Campbell on redemption." It was then averred in the bill that the complainant had ascertained that the defendant Francis had paid a designated amount as municipal taxes, which said amount the complainant tendered and paid into court for the said Francis, as well as the interest thereon. It was further averred in the bill that prior to the filing of the bill the complainant went to the said Foster H. Pointer and Nelson Campbell, respectively, and offered to pay to each of them, respectively, all lawful charges, the value of all permanent improvements placed by each of them on the property purchased by them of Francis, and inquired and sought to ascertain from each of them the value of the improvements, if any, which either of them had placed upon the respective parcels or portions of the property that he had purchased from the said Francis, and also offered to pay a just and proper proportion of the purchase money bid by said Francis, but that said Pointer and Campbell each peremptorily refused to accept said proposition, and refused to discuss the value of the permanent improvements placed by either of them upon said property, and refused to receive any compensation therefor, and refused to name or claim any sum for the lawful charges; that, therefore, the complainant offers to pay the value of all permanent improvements, the value of the lawful charges, and a proper proportion of the purchase money paid by said Francis. The prayer of the bill was that the complainant be decreed to be entitled to redeem said lands, that the amount necessary to be paid to the defendants, and each of them, be ascertained, and that the defendants be required to accept said sums, and that upon the payment thereof they be required to execute proper conveyances of their right, title, claim, and interest in and to said lands to the complainant.

The defendants demurred to the bill, and assigned many grounds of demurrer, which, for convenience of reference in connection with the opinion, are set forth as follows: The 4th, 6th 7th, 8th, 15th, 16th, and 32d grounds of demurrer, the overruling of which constitutes the 4th, 6th, 7th, 8th, 15th, 16th, and 27th assignments of error, were as follows: "(4) The complainant does not offer in his bill to pay all lawful charges upon said lands other than those for which tender is made into court." "(6) The complainant does not tender and bring into court the money for all lawful charges necessary to be paid before redemption. (7) The bill does not deny that there were lawful charges other than those described in the bill. (8) It appears from the bill that the complainant has not tendered into court the money for all lawful charges held by defendant Francis against said land." "(15) Ignorance upon the part of complainant respecting the amount of lawful charges against said property held by the defendant does not excuse the complainant from tendering into court, in money, the amount of lawful charges against said property. (16) The failure or refusal of defendants to inform complainant of the lawful charges on said lands, and the value thereof, is no excuse for the failure of complainant to tender into court, in money, the value and amount of all of said charges." "(32) The averments of the bill show that there are other lawful charges, known to complainant, against the property sought to be redeemed, for which complainant has not made tender by paying the money into court." The 1st, 2d, 28th, and 29th grounds of demurrer, the overruling of which constitutes the 1st, 2d, 26th, and 31st assignments of error, were as follows: "(1) It does not appear from said bill that C. C. Sheats, complainant's intestate, owned any right, title, or interest in the lands sought to be redeemed. (2) The bill does not show what interest the complainant seeks to redeem in the lands described therein." "(28) The averment of the bill fails to show what right, title, or interest C. C. Sheats had in the lands sought to be redeemed at the time of the execution sale. (29) The averment of the bill fails to show what right, title, or interest C. C. Sheats had in the lands sought to be redeemed at the time of his death." The 9th and 10th grounds of demurrer were as follows: "(9) It is not averred in the bill that complainant had no means of ascertaining the value of permanent improvements placed on part of the land, therein described, by Foster H. Pointer. (10) It is not averred in the bill that complainant had no means of ascertaining the value of permanent improvements placed on a part of the land, therein described, by Nelson Campbell." The 11th, 12th, 13th, and 14th grounds of demurrer, the overruling of which constitutes the bases of the 11th, 12th, 13th, and 14th assignments of error, were as follows: "(11) It is not averred in said bill that the complainant had no means of ascertaining the existence of all lawful charges against said lands. (12) The bill fails to allege that complainant had no means of ascertaining the amount due for lawful charges on said lands. (13) The bill does not show what diligence the complainant has exercised in ascertaining or attempting to ascertain the lawful charges. (14) The allegation of said bill, that complainant has diligently...