Glass v. Hieronymus

• Decision Date: 19 April 1900
• Citation: 125 Ala. 140,28 So. 71
• Parties: GLASS v. HIERONYMUS ET AL.
• Court: Alabama Supreme Court

28 So. 71

125 Ala. 140

GLASS v. HIERONYMUS ET AL.

Supreme Court of Alabama

April 19, 1900

Appeal from chancery court, Mobile county; Thomas H. Smith Chancellor.

Bill by Hieronymus Bros. against Adam Glass and others. From a decree for complainants, defendant Glass appeals. Affirmed.

The bill in this case was filed by the appellees, Hieronymus Bros., against the appellant, Adam Glass, and E. Turner, H Turner, and T. Turner, to have a certain instrument, which was on its face and absolute deed, declared a mortgage. The bill, as originally filed and as amended, was demurred to and the demurrers were sustained by the chancellor. An appeal was taken from this decree to the supreme court. Said decree was reversed, and the cause was remanded. 120 Ala. 46, 23 So 674. Upon the remandment of the cause the same demurrers were refiled to the bill, which raised two questions: First, whether the alleged verified contract sought to be enforced was void under the statute of frauds (Code 1896, § 2152, subd. 5); second, whether the said alleged verified contract was void under Id. § 1041, prohibiting the creation by parol of any trusts in land, except such as result by implication of law. By agreement of counsel filed in the cause on the 11th day of July, 1898, it was expressly agreed that all of these allegations should be taken as fully proven, with the single exception of that portion thereof which related to the agreement between the appellant and appellees under which the money was advanced. It was alleged by the bill, and stipulated in said agreement: That the Mobile & Ohio Railroad Company was the owner of the land in question. That the Farmers' Loan & Trust Company held a deed of trust thereto; that, by a trilateral agreement among these companies and the Alabama Land & Development Company, the latter was constituted the agent of the two former for the sale of the property, and that, under the power of attorney thus constituted, the Alabama Land & Development Company sold the lands in question to the Cassibrys for the sum of $5,648.38. The Cassibrys, having paid a part of this purchase money, transferred, in November, 1893, their interest in the property to the appellees, Hieronymus Bros., made to them a part payment, and assumed the payment of the balance then due upon the purchase money. Thereupon Hieronymus Bros. and the Alabama Land & Development Company entered into a written contract whereby the property was sold to Hieronymus Bros. for the sum of $3,352.80, for which Hieronymus Bros. executed their three promissory notes, each for $1,117.60, and due, respectively, February 23, March 23, and August 23, 1894, with interest at the rate of 8 per cent. per annum, and the Alabama Land & Development Company, acting under the power of attorney already mentioned, executed and delivered to Hieronymus Bros. a bond for title to said property. Hieronymus Bros. having paid on account of these notes the sum of $257.65, their total indebtedness upon said purchase money amounts, at the time of the transaction now in question, to $3,479.80. On May 18, 1894, Hieronymus Bros. executed to Adam Glass the following paper, which was set out in the bill of complaint: "For value received, we hereby transfer, convey, and assign to Adam Glass all our right, title, and interest in the lands embraced in the foregoing instrument, and authorize the Alabama Land & Development Company to have a deed executed to said Adam Glass covering all the lands in said tract. [Signed] Hieronymus Bros." This transfer and assignment were indorsed on the written obligation held by Hieronymus Bros. to the Alabama Land & Development Company, above referred to. On the same day, Adam Glass paid off the balance due from Hieronymus Bros., and Hieronymus Bros. having requested the Alabama Land & Development Company to have the property conveyed to Glass, the company caused the Farmers' Loan & Trust Company to convey the property to Glass,-on May 18, 1894; and it is this deed which complainants seek by the present suit to have decreed to constitute a mere security for the repayment to Glass of the money so advanced. The property was sold by Glass to the other defendants, but, as the decree appealed from does not relate to this part of the case, it is perhaps unnecessary to do more than to state that the complainants, Hieronymus Bros., offered in their bill to ratify this sale, and to accept the purchase money in lieu of the property. The bill alleges that the payment by Glass was in response to an application by Hieronymus Bros. for the loan of this sum with which to make this payment, and was made under an agreement that Glass should advance the balance due upon the purchase money, upon interest at the rate of 10 per cent. per annum, and he took a conveyance of the property to stand as a mortgage to secure the repayment of the money so advanced. This is the only allegation of the bill which is not admitted by the agreement of the counsel to be true, and is therefore the only allegation of the bill as to which any evidence was taken. The other facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause upon the pleadings and proof, the chancellor overruled the demurrers which had been interposed, and rendered a decree declaring that the complainants were entitled to the relief prayed for, and ordered accordingly. From this decree the defendant Adam Glass appeals, and assigns the rendition thereof as error.

Pillans, Torrey & Hanan, for appellant.

Gregory L. & H. T. Smith, for appellees.

SHARPE J.

Stated generally, the grounds for relief alleged in the bill are substantially, that, the complainants being indebted for lands, they applied to the appellant for a loan wherewith to pay the debt, and that he agreed to, and did, lend them money for that purpose; that, as part of the same transaction, it was agreed that complainants, to secure the loan, should transfer to appellant their contractual interest in the lands, and should cause their vendor to convey the title to appellant by a deed to be absolute in form, but which was to stand and be considered only as a mortgage securing the loan; and that, pursuant to the agreement, appellant, by way of making the loan, paid the complainants' debt to the vendor, who, under complainants' authority, conveyed by deed to appellant. It is further alleged, in substance, that appellant has repudiated the agreement, and has sold the land, mainly on a credit, to others, made defendants to the bill, who bought with notice of complainants' equities, etc.; and the...