Groover v. Darden, 5 Div. 554

Decision Date05 November 1953
Docket Number5 Div. 554
Citation259 Ala. 607,68 So.2d 28
PartiesGROOVER et al. v. DARDEN et al.
CourtAlabama Supreme Court

Hines & Hines and C. S. Moon, La Fayette, for appellants.

R. C. Wallace, La Fayette, and John W. Johnson, Lanett, for appellees.

LAWSON, Justice.

James Darden, a colored man, a resident of Chambers County, received a deed in 1933 from The Federal Land Bank of New Orleans conveying to him a tract of land situate in that county consisting of approximately 163 acres. The purchase price was $850, of which sum $170 was paid in cash. Darden executed a mortgage back to the bank to secure the remainder of the purchase price. Darden eventually paid the entire purchase price. On March 30, 1951, James Darden and wife, Lula Darden, executed a written instrument, in the form of a warranty deed, wherein it is recited that they conveyed the 163-acre tract of land to E. L. Groover for a consideration of $5 and other valuable consideration.

Within two weeks after the execution of the said written instrument bearing date of March 30, 1951, James Darden and wife advised Mr. Groover that they had not been aware of the fact that the instrument which they had executed on March 30, 1951, was a deed. They sought to get Groover to permit them to execute a mortgage on the said lands to secure the payment of the money which Groover had turned over to them upon the execution of the said instrument and for him to deliver up the deed. Groover refused to accede to the request.

James Darden on April 16, 1951, instituted this proceeding in the circuit court of Chambers County, in equity, against E. L. Groover and wife. By amendment Lula Darden, the wife of James Darden, was made a party complainant.

The pertinent parts of the bill of complaint read as follows:

'2. Your complainant avers that on divers dates since the month of, to-wit, July, 1950, your complainant has borrowed various sums of money from the respondent, Ester L. Groover, which altogether totals the sum of, to-wit, Seven Hundred Eighteen And No/100ths Dollars ($718.00).

'3. Your complainant further avers that on, to-wit, the 21st day of March, 1951, your complainant and wife, Lulu Darden, executed an instrument in writing to either said respondent, Ester L. Groover, Minnie Groover, or both, which he thought to be a mortgage on a part of the premises which is hereinafter described. Your complainant avers that the true nature of said instrument is unknown to him, but he has been informed, believes, and avers as fact, that the said instrument was in fact a deed.

'4. Your complainant further avers that on, to-wit, the 30th day of March, 1954, your complainant and his wife, Lula Darden, executed an instrument in writing on a part of the premises which is hereinafter described to either respondent, Ester L. Groover, Minnie Groover, or both, which he thought to be a mortgage, but your complainant has since learned that the instrument which he executed was actually a deed on all of the premises which are hereinafter described.

'5. Your complainant further alleges that the value of the premises hereinafter described is in excess of the sum of Five Thousand And No/100ths Dollars ($5,000.00).

'6. Your complainant further alleges that both of said deeds were executed through a mutual mistake on the part of complainant James Darden on the one hand, and of respondents Ester L. Groover and/or Minnie Groover on the other hand.

'7. Your complainant further alleges that both of said deeds were executed by your complainant as a result of fraud practiced upon your complainant by the respondents Ester L. Groover and/or Minnie Groover in that said respondent Ester L. Groover and/or Minnie Groover prepared or had prepared both of said deeds, and presented them to your complainant with the representation that they were mortgages upon a part of the premises hereinafter described, and your complainant avers that he acted upon said representation, and signed and delivered said deed to the respondent, Ester L. Groover.

'8. Your complainant avers that the premises heretofore mentioned are described as follows, to-wit: (Description.)

'9. Your complainant further alleges that he has contacted through his attorney, respondent Ester L. Groover, and has offered to pay such sum or sums as may be due to the said respondents, but that this offer was refused. Your complainant further avers that he requested, through his attorney, the said respondents to give up the said deeds, and to allow your complainant to execute a mortgage to the respondents in lieu thereof, but that this request was also refused. Your complainant avers that he is still willing to pay such sum or sums as may be due to the respondents, or to execute a mortgage to the respondents to secure such sum or sums as they may be due upon receipt of said deeds.'

The prayer for relief is as follows:

'Your complainant prays that this Honorable Court will do the following:

'(a) That the deeds heretofore mentioned be reformed so as to make them mortgages on the premises heretofore described.

'(b) That the respondents be restrained and enjoined by this Honorable Court, both pending the determination of this suit and permanently, from conveying any interest in the premises heretofore mentioned.

'(c) That an accounting be had, and the exact amount that is due to said respondents, or either of them, by your complainant be determined.

'And that your Honors will grant such other, further and different relief as unto your Honors may seem just and proper, and your complainant will ever pray.'

Upon the filing of the bill and its presentation to the trial court, an order was entered directing the issuance of a temporary injunction enjoining the respondents from conveying any interest in the real property described in the bill of complaint pending the determination of the suit. Upon the complainants executing the required bond, such an injunction was issued on April 17, 1951.

After the bill was amended in a manner not necessary to relate, the respondents filed their demurrer. A decree was rendered on August 21, 1951, overruling the demurrer and allowing respondents twenty days within which to answer. Not having answered within the time allowed, the respondents filed their motion to allow them to file answer on October 1, 1951, which motion was granted, and on that date the respondents filed their answer to the bill of complaint as amended. The bill of the complainants and the answer of the respondents were both subsequently amended, but it would serve no good purpose to treat here with those amendments.

There was no motion to dissolve or discharge the temporary injunction and we are not concerned here with the action of the trial court in ordering the issuance of the temporary injunction.

The cause came on to be heard on November 14, 1951. Testimony was taken orally before the trial court. On December 7, 1951, the trial court rendered a decree in pertinent parts as follows:

'It, therefore, follows that the court is of the opinion that the complainant is entitled to the relief prayed for in his bill of complaint.

'It is, therefore, ordered, adjudged and decreed by the court that the deed dated March 30, 1951, executed by the complainant, James Darden, and his wife, Lula Darden, to E. L. Groover, and recorded in Deed Book 111, Page 386, Records of Chambers County, Alabama, referred to in the testimony as Respondents' Exhibit A, be and the same is hereby declared to be a mortgage instead of a deed. And it is furthur ordered, adjudged and decreed by the court that said deed mentioned next hereinabove, whether it be a mortgage or a deed, be and the same is hereby declared to be null and void and is hereby set aside and canceled, as fully as if it had never been executed.

'It is further ordered, adjudged and decreed by the court that the complainant, James Darden, is indebted to the respondent, Ester L. Groover, in the principal sum of $693.00, and which sum includes all moneys due in any way by the complainant, James Darden, to the respondent, Ester L. Groover, or to the respondent, Minnie J. Groover, or by whatever name she may be called. And it is further ordered, adjudged and decreed by the court that the complainant, James Darden, pay to the said Ester L. Groover, respondent and the said Minnie J. Groover, alias Mrs. E. L. Groover; alias Minnie Groover, alias Mrs. Minnie Groover, respondent, the sum of $693.00, in thirty days from the date of the filing of this decree in this court, and the payment of which said sum of $693.00 shall be in full payment of all indebtedness due by the complainant to the respondents, and shall satisfy all mortgages either on real or personal property, heretofore executed by the complainant to the respondents. And failing to pay said sum of $693.00, according to the terms of this decree, and within the term prescribed herein, then, and in that event, it is ordered, adjudged and decreed by the court that the complainant, James Darden, together with his wife, Lula Darden, execute a mortgage to the respondents in the sum of $693.00, payable one year from the day of the date thereof, and bearing interest at the rate of six (6) per cent per annum from date, and which said mortgage, when so executed, shall be evidence on the entire indebtedness owed by the complainant, James Darden, to the respondents in this cause.'

From the decree of December 7, 1951, the respondents below have appealed to this court.

Appellants, respondents below, have made nine assignments of error, but we will treat only those which are argued in brief of appellants. Taunton v. Trammell, 254 Ala. 252, 48 So.2d 190; Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509.

The first assignment of error is that the trial court erred in overruling the demurrer of the respondents below.

It is provided by statute that rulings of the trial court on interlocutory decrees may be reviewed by this court on appeal from final decree. § 756, Title 7, Code 1940...

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    ...we generally treat only those grounds of the demurrer insisted upon in brief of appellant as having been well taken. Groover v. Darden, 259 Ala. 607, 68 So.2d 28, and cases cited; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164. No ground of any of the demurrers is referred to by numb......
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    ...which are argued here in brief of counsel for appellant, but we will not treat those grounds of demurrer not argued. Groover v. Darden, 259 Ala. 607, 68 So.2d 28, and cases Grounds of demurrer which are argued in brief read as follows: 'Seventh. Because it is not alleged with sufficient cer......
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