Gravlee v. Lamkin

• Decision Date: 29 October 1898
• Citation: 24 So. 756,120 Ala. 210
• Parties: GRAVLEE v. LAMKIN.
• Court: Alabama Supreme Court

24 So. 756

120 Ala. 210

GRAVLEE v. LAMKIN.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Bill by Mrs. N.M. Lamkin against H. J. Gravlee. Decree for complainant. Defendant appeals. Affirmed.

On 3d day of April, 1895, Mrs. N.M. Lamkin, the appellee, filed the bill of complaint in this cause against the appellant, Harvey J. Gravlee, to declare and enforce a trust lien or equitable charge on the lands described in the bill for the sum of $648, evidenced by a promissory waive note or bond executed by defendant and his wife, N. N. Gravlee, to complainant, on the 6th day of April, 1893, due 3d day of February, 1894. The grounds on which the alleged trust lien or equitable charge is based is that on November 28, 1883, William Gravlee, who was the father of the defendant and complainant, and also of G. W. Gravlee and D. H. Gravlee, being old and in failing health, conveyed the lands in controversy to G. W. Gravlee that, in consideration of said conveyance, G. W. Gravlee, on said 29th of November, 1883, executed a written agreement, in which, among other things, he agreed to pay to complainant $1,200, to wit, $600 one year after death of said William Gravlee, and $600 two years after his death, with interest for one year; that on the 22d of October, 1888, G. W. Gravlee conveyed the said lands to the defendant and D. H. Gravlee charged with said trust, as expressed in the conveyance, to wit, the payment to complainant of said $1,200, as aforesaid that on July 6, 1890, D. H. Gravlee conveyed all his interest in said lands to defendant, and has no further interest therein; that on 3d of January, 1892, William Gravlee died that said first $600 had been paid to complainant before bill filed; that the other $600 had not been paid, but that on 6th of April, 1893, defendant and his wife executed and delivered to complainant their joint and several promissory waive note for said last $600, and interest due thereon under said former contracts of G. W. Gravlee and defendant D. H Gravlee. The note or bond (for it is under seal) is made an exhibit to the bill. It is in words and figures as follows: "Gravleeton, Alabama, April 6th, 1893. 3d day of February, 1894, after date, we promise to pay to the order of Nancy M. Lamkin six hundred and forty-eight dollars, value received, at Jasper, Alabama. The right of exemption is hereby waived as provided in constitution and laws of the state of Alabama, or any other state in the United States; and it is further agreed that the undersigned shall pay all cost of collecting, including a reasonable attorney's fee, if not paid at maturity. Given under our hands and seals, this 6th day of April, A. D. 1893. [Signed] H. J. Gravlee. [L. S.] N. N. Gravlee. [L. S.] Witness: T. P. Lamkin." In the bill said attorney's fees are claimed and sued for. It is further alleged in said bill that in taking said note complainant did not waive her lien on said lands, but expressly reserved the same. The prayer of the bill, after asking that H. J. Gravlee be made a party defendant by proper process, was as follows: "That your honor will order a reference to the register to ascertain and report the amount due complainant under said trust, and on the coming in of the report that your honor will order and decree that, unless the amount so found to be due is paid within the time to be prescribed by your honor, said lands be sold to satisfy your oratrix's demand." Then follows the prayer for general relief. On May 2, 1894, defendant answered the bill, admitting its averments, except that he denied that the second $600 had not been paid. He alleged that the said $648 note or bond was given in full payment of said obligation; that his wife, N. N. Gravlee, was his surety on said bond; that when it was made and delivered to complainant it was distinctly understood and agreed by and between the parties thereto and said surety that it was taken in full payment and satisfaction of said $600, and that said lands were thereby released and discharged from any further incumbrance, lien, charge, or trust for the payment of said $600. He also denied that complainant retained her lien on said lands when she took said bond, as alleged in her bill. Defendant, as a part of his answer, demurred to said bill substantially as follows: (1) For want of proper parties, because it was shown by the bill and exhibits that G. W. Gravlee, in conveying said lands to appellant and D. H. Gravlee by deed (made an exhibit to the bill), had not only charged said lands with said trust of $1,200 in favor of appellee, but also with another trust or charge in the hands of said grantee of $1,000 in favor of the wife of said G. W. Gravlee, C. M. Gravlee, and therefore C. M. Gravlee was shown to have such an interest in the lands, the subject-matter of controversy, that she was and is a necessary party, and ought to be made such, to enable her to come into court, and protect her interests in the property. (2) Because G. W. Gravlee, the first and principal obligator to appellee, who first promised to pay the $1,200 to appellee, and who is ultimately liable to her if the land should not bring enough to pay her, and who created the trust or charge on the land, was not made a party. (3) All the heirs of William Gravlee, deceased, whose lands these were when charged with this trust, should be made parties. (4) That N. N. Gravlee, the surety on said waive note, is a necessary party to the bill. (5) For want of equity, in this: that the bill showed that appellee had taken said promissory waive note or bond with N. N. Gravlee as surety, and thereby waived her lien, trust, or charge on said lands. (6) That said waive note or bond, with attorney's fees provided for therein and sued for, is in legal effect a novation of the original contract, and a waiver of the lien, trust, or charge on the lands.

The complainant in her deposition testified as follows: "I am the complainant in this suit. I am N.M. Lamkin that the note marked 'Exhibit D' to the bill is payable to. I first saw the note as soon as Mr. Lamkin came back from Mr. H. J. Gravlee's. I saw it in the spring, soon after it was taken. I was not present when the note was signed up. After the note was signed up, Mr. H. J. Gravlee came to get a receipt for it. This was in the summer after Mr. Lamkin brought me to the note. I don't recollect the exact time. It was perhaps two or three months. Mr. Lamkin and myself and Mr. H. J. Gravlee were the only ones present when he came, is my recollection. H. J. Gravlee and Mr. Lamkin were conversing about the receipt when I came into the room. I inquired what it was that a receipt should be given, and Mr. Lamkin just said that Jack wanted it, and that he thought he would be better satisfied with it. Jack agreed that if we would give him a receipt for the note that he would insert the numbers of the land in the receipt when he reached the probate's office, so that he could get the correct numbers of the land. The note was given for my part of the home place, for my interest in the land there. N. N. Gravlee is H. J. Gravlee's wife. I knew she was his wife when I first saw the note. I don't remember that anything was said about my having a lien on the land at the time he came to get the receipt, except that he said that 'she had a lien on the lands.' I never relinquished my claims on said land by taking said note. I refused at all times to relinquish my claims in said lands, except for money. William Gravlee was my father's name. It was my interest in the land belonging to his estate that this note was given for. Jack Gravlee wrote out this receipt that I signed." On cross-examination she testified: "My recollection is that the blank was left in said receipt for Jack to insert the numbers in. Mr. Lamkin and I both signed the receipt."

T. P. Lamkin, the husband of the complainant, testified in his deposition as follows: "I don't remember just how long after the note was made when he came to get the receipt. It was in the summer some time. He came to my house. He brought a receipt for us to sign. We did not sign the receipt that he brought, because the receipt that he brought released the lands entirely. I stated to Mr. Gravlee, at my house, why I would not sign the receipt he brought. I stated to him that I would not sign the receipt he brought because it released the lands. We did sign a receipt. The receipt was not complete when we signed it. There were blanks in it. The numbers of the land were to be included in the blanks of the receipt. That receipt we gave was to show that the note was given for her interest in the land, and the blank left in the receipt was to insert the numbers in when we got to the probate office. Nothing was said about my wife's releasing her claims or interest in said lands, except she refused to sign the first receipt, releasing said lands. My wife did not sign any receipt releasing said lands. After the numbers were not inserted in the receipt, Mr. Gravlee went to Mr. Appling's office, and I went to him later in the day to get him to insert the numbers, and he refused to do so."

The deposition of N. N. Gravlee, the wife of the defendant, was, in substance, that T. P. Lamkin, husband of complainant, went to defendant's house, and said he was in pressing circumstances, and wanted appellant to give a note, with witness on it, as surety, so that he could use it as collateral security to obtain money to save his property from sale under mortgage; that nothing was said about the note being a lien on the land; that Lamkin wanted a mortgage, but, as appellant owed the other heirs, he would not give a mortgage.

The deposition of the defendant is to the same effect, in substance, as his wife's, with reference to...