Hardy v. Killingsworth

• Decision Date: 19 December 1911
• Citation: 174 Ala. 322,56 So. 965
• Parties: HARDY v. KILLINGSWORTH.
• Court: Alabama Supreme Court

56 So. 965

174 Ala. 322

HARDY v. KILLINGSWORTH.

Supreme Court of Alabama

December 19, 1911

Appeal from Shelby County Court; E. S. Lyman, Judge.

Suit by Emma E. Killingsworth against Fred H. Hardy to perpetually enjoin a judgment in ejectment for the possession of 40 acres of land, and to invest complainant with legal title thereto. From a judgment granting relief, defendant appeals. Affirmed.

Riddle Ellis, Riddle & Pruett, for appellant.

Sam Will John, for appellee.

SAYRE J.

Appellant had recovered the land in controversy by a judgment of the circuit court of Shelby, in which Emma Killingsworth and her husband, John T. Killingsworth, were parties defendant. The judgment was for mesne profits and costs, also. Thereafter Mrs. Killingsworth filed this bill, alleging a perfect equitable title in herself, and praying that the execution of the judgment at law be perpetually enjoined. Defendant claims in virtue of a deed from the trustee in bankruptcy of John B Randall. Complainant claims to have purchased the property from Randall, and to have paid the purchase money in full prior to the commencement of proceedings in bankruptcy against said Randall. The averment of the bill is that Randall was prevented from executing a conveyance upon complainant's payment of the purchase money, as he had agreed, and as he was otherwise prepared to do, by the sickness of his wife, who was expected to join in the conveyance; that shortly thereafter the proceedings in bankruptcy were commenced; and that a little later Randall died. There is no question about notice. The case turns upon this question of fact: Whether complainant paid the agreed purchase price in full before the commencement of the proceedings in bankruptcy. Appellant holds that this question ought to be answered in the negative, and, incidentally denies the legal competency of some evidence offered by the appellee.

The judge of the county court found the complainant was entitled to relief, and we think the legal evidence in the record supports that finding. Complainant offered in evidence a paper writing, by the terms of which Randall agreed to make a good deed to the land upon the payment of $350; complainant having five years in which to pay. This paper bore date February 17, 1896. Proceedings in bankruptcy against Randall were commenced April 10, 1901. The last numeral in the date of the contract of sale was written over an erasure. The judge below states in his opinion, filed with his decree that it is impossible to say what figure was erased. Appellant contends that the date as originally written was 1897; that complainant was guilty of an act of spoliation in making the change; and that, in consequence, the paper ought not to be received in evidence. When considered in connection with the date of Randall's bankruptcy and the time for payment stipulated in the contract, the importance of this question is obvious, and if appellant's insistence is to prevail, then, in our judgment, appellee's case must fall to the ground. Herein differing from the opinion expressed by the trial judge, we think the erasure and superscription of the figure 6 in the date of the contract called for explanation by the appellee. This the appellee (complainant)...