Gay v. Tompkins

• Court: Alabama Supreme Court
• Writing for the Court: BEATTY; Additionally, the appellees place reliance upon the failure of the vendor; TORBERT; BLOODWORTH; MADDOX
• Citation: Gay v. Tompkins, 385 So.2d 973 (Ala. 1980)
• Decision Date: 07 July 1980
• Docket Number: No. 79-206,79-206
• Parties: Viola Marcum GAY et al. v. Henry TOMPKINS and Eugenia Tompkins.

Page 973

385 So.2d 973

Viola Marcum GAY et al. v. Henry TOMPKINS and Eugenia Tompkins.

No. 79-206.

Supreme Court of Alabama.

July 7, 1980.

Isaac P. Espy of Tucker, Gray & Espy, Tuscaloosa, for appellants.

George S. Wright of Rosen, Wright, Harwood & Albright, and Gordon Davis, Tuscaloosa, for appellees.

BEATTY, Justice.

Plaintiff-appellant Viola Marcum Gay brought suit seeking a sale in lieu of partition against ten defendants. Eight of the ten defendants answered and admitted the averments of the complaint and agreed to a sale. Defendants-appellees Henry Tompkins and Eugenia Tompkins denied the allegations of the complaint and alleged that they alone had title to the subject property.

All of the parties derive title out of J. G. Marcum, deceased. All parties, but the Tompkinses, are children of J. G. Marcum. Any title the Tompkinses have derives from a deceased child of J. G. Marcum, one R. S. "Buck" Marcum.

The sole issue at trial was the extent of the title the Tompkinses received from R. S. "Buck" Marcum. The extent of that title turns on the efficacy of a "bond for title" which R. S. "Buck" Marcum received from his father, J. G. Marcum.

J. G. Marcum owned the subject property prior to October 24, 1956. On that date he executed a "bond for title" to his son R. S. "Buck" Marcum. J. G. Marcum died intestate on July 31, 1962 and at that time his son, R. S. "Buck" Marcum was four months delinquent in payments called for on the "bond for title." Out of $4,500 contracted to be paid, R. S. "Buck" Marcum had paid $3,600 but he never paid the remaining $900.

Shortly after his father's death R. S. "Buck" Marcum mortgaged the subject property along with another tract which is not involved in this proceeding, and a 1959 Cadillac automobile, to secure an indebtedness of $4,000 to Henry Tompkins and Eugenia Tompkins (appellees). This mortgage was foreclosed on August 27, 1966 and the defendants-appellees, the Tompkinses, either succeeded to all of R. S. "Buck" Marcum's one-tenth interest in the property by virtue of R. S. "Buck" Marcum's inheritance or to the entire interest, if the "bond for title" to R. S. "Buck" Marcum was efficacious to convey the fee of J. G. Marcum to R. S. Marcum.

The trial judge, after a bench trial, made findings of fact and conclusions of law, and entered a decree which reads, in part, as follows:

The Court further finds that such Bond for Title dated October 24, 1956 had provision as follows:

"This Contract shall at the option of the party of the first party only, be terminated . . . ."

The Court further finds that there never has been any acceleration of the Bond for Title and that the option granted to J. G. Marcum to terminate said contract was never exercised prior to the filing of the suit on February 23, 1978. The Court further finds that the option to enforce the forfeiture of the rights under such Bond for Title had never been exercised by J. G. Marcum or any other party prior to the date of the suit, February 23, 1978. The Court further finds that Reuben S. Marcum and his successor Henry Thompkins (sic) and Eugenia Thompkins are ready, willing and able and have by their pleadings offered to pay the balance due under such Bond for Title ($900.00); that such default by Reuben S. Marcum Thompkins was not willful or intentional and that there is no inequitable conduct which would have barred Reuben S. Marcum Thompkins by some other controlling doctrine of equity from curing the default; that under the principles of equitable title but not legal title, Reuben S. Marcum had, and Henry Thompkins and Eugenia Thompkins have a valid equitable title to such premises; that said Reuben S. Marcum as of October 24, 1956 went into actual, open, peaceful, notorious, and continuous possession, under claim of ownership, from October 24, 1956 until his death on December 1, 1976 and one or more of said Reuben S. Marcum's children continued to occupy such premises as a tenant at will after the date of Rueben S. Marcum's death On December 1, 1976 until the date of suit, February 23, 1978; that Reuben S. Marcum has annually listed the land for taxation in Tuscaloosa County from 1957 until 1973 and thereafter from 1974 until 1978, when suit was commenced, Henry Thompkins and Eugenia Thompkins have assessed the property so that the annual listing of the land for taxation requirement of Section 6-5-200, Code of Alabama, 1975, subparagraph (2) has been fully complied with; that all of the requirements of prescription for over 20 years have been complied with; that the suit was not filed within the actual statute of limitations as set out in Section 6-2-33, Code of Alabama, 1975; that upon the death of J. G. Marcum, there was no administrator appointed and no executor appointed, nor anyone in the representative capacity to represent the estate of J. G. Marcum was appointed to collect the $900.00 balance due under such Bond for Title, consequently, there was no personal (representative) for Reuben S. Marcum to pay after the death of J. G. Marcum.

IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the Plaintiff, Viola Marcum Gay has not met the burden of proof that she is in fact a tenant in common so that she is not entitled to a sale for division of the premises herein; that this proceeding being brought in equity and recognizing equitable principles, the Court orders and determines that the equitable title in such premises is vested in Henry Thompkins and Eugenia Thompkins; that not only the equitable title but also the legal title is now vested in said Henry Thompkins and Eugenia Thompkins by virtue of 10 years adverse possession under Section 6-5-200, Code of Alabama, 1975, under Section 6-2-33, Code of Alabama, 1975, and under 20 years prescription, subject to the payment of said $900.00; that Doris T. Turner, Circuit Clerk, is ordered and directed to execute a deed pursuant to the order of this Court to the said Henry Thompkins and Eugenia Thompkins vesting in said Henry Thompkins and Eugenia Thompkins all of the right, title and interest, if any, in the heirs of J. G. Marcum, so that any interest, if any, in said 10 heirs of J. G. Marcum is divested out of (them) and vested in the said Henry Thompkins and Eugenia Thompkins, such heirs interest being divested is listed as follows: Reuben S. Marcum, Mary Elizabeth Marcum Saul, Viola Marcum Gay, George P. Marcum, Oscar Grady Marcum, William O. Marcum, Irene Marcum Johnston, Talmadege Clayton Marcum, Nell Marcum Schryer, and Linda Marcum; that it would be unequitable and unconscionable to allow forfeiture to be declared in this case wherein the successors to the purchaser are ready, willing and able to pay the balance under the Bond for Title being $900.00-$3,600.00 being paid upon a $4,500.00 purchase; that (neither) J. G. Marcum during his lifetime nor his heirs prior to filing a suit on February 23, 1978, had ever exercised the option to accelerate the balance due under such Bond for Title nor had any forfeiture been declared by J. G. Marcum nor any of his successors prior to the date of suit, February 23, 1978; that this Court being a Court of Equity, will recognize the equitable title under such Bond for Title and also recognize the legal title vested by way of adverse possession and prescription in Rueben S. Marcum and now Henry Thompkins and Eugenia Thompkins; that upon payment of the balance due of $900.00 on such Bond for Title by Henry Thompkins and Eugenia Thompkins, then Doris T. Turner, Circuit Clerk, shall execute such deed as set out hereinabove.

Appellants, the siblings of the late J. G. Marcum, present numerous issues on appeal which may be summarized as follows:

(1) Whether the trial court erred in permitting the successors-in-interest (the Tompkinses) of the vendee to redeem the bond for title which was in default for seventeen years, when the instrument states that "time is of the essence";

(2) Whether the court's finding that the Tompkinses have adversely possessed the property for the requisite period or have satisfied the requirements to obtain title by prescription is contrary to the law and evidence; and (3) Whether the ten-year statute of limitations for the recovery of lands has been tolled.

BOND FOR TITLE

The thrust of the Tompkinses' argument is that the law in Alabama treats bonds for title as an equitable mortgage on the land; therefore, they say, they could redeem the bond prior to a foreclosure, even if the payments under the bond have been in default. We disagree with this argument.

The portion of the bond for title, pertinent to the issues presented, reads as follows:

The party of Second Part (Buck Marcum) agrees to pay promptly and strictly in accordance with the terms hereof each installment as it falls due; and if the Party of the Second Part shall fail to pay any one of said installments on the day the same falls due and such default shall continue for thirty days, time the essence of this contract, this contract shall at the option of the party of the First Part (J. G. Marcum) only, be terminated, and the Party of the First Part, his agents or assigns, may reenter upon the said property and take possession thereof, and in that event, all rights and interests given to the Party of the Second Part by this contract shall cease and terminate, without any right in the Party of Second Part of reclamation for any monies paid, or improvements made under this contract; but all monies so paid shall be and remain the property of the Party of the First Part and shall be held and retained by him as compensation for the rent or use and occupation of the said property, and the Party of Second Part agrees to peacefully surrender possession of the said premises. The Party of First Part shall have the option to waive the forfeiture of the rights and interests of the Party of the Second Part in this contract on default in the payment of any of the said installments, but the waiver of such shall...