Harrison v. Maury

• Citation: 37 So. 361,140 Ala. 523
• Parties: HARRISON ET AL. v. MAURY.
• Decision Date: 21 July 1904
• Court: Alabama Supreme Court

37 So. 361

140 Ala. 523

HARRISON ET AL. v. MAURY.

Supreme Court of Alabama

July 21, 1904

Appeal from Chancery Court, Choctaw County; Thos. H. Smith Chancellor.

Bill by A. S. Harrison and others against D. H. Maury. From a decree dismissing the bill, complainants appeal. Affirmed.

The bill, as originally filed, averred that the complainants purchased certain described lands from one Phillips, to secure the purchase price of which they executed a mortgage thereon to said Phillips; that, upon being unable to pay the purchase-money notes secured by said mortgage when they matured, they entered into an arrangement and agreement with the respondent by which he paid the mortgage deed to Phillips, and the complainants executed to the defendant Maury a deed to said lands; that said Maury thereupon agreed to sell to the complainants said lands at a specified price for which the complainants executed to said Maury their note that said Maury thereupon executed to the complainants a bond for title, which stipulated that, upon the complainants paying to said Maury the amount specified in the note which they had executed, he would execute a deed to them conveying said lands; that the bond for title also contained the stipulation that, in the event complainants did not pay the amount so provided by the deed on the maturity of their note they would pay a stipulated sum as rent for said land. It was then averred in the bill that said transaction was intended to give the complainants the right to repurchase said lands and that just before the maturity of said note, and the day fixed in the bond for title for the payment of the purchase price agreed upon, the complainants went to the brother of the defendant (the latter being out of the state), and delivered to him a certain number of bales of cotton, and stated that they were in part payment of the purchase price of said lands, and that they, the complainants, were prepared to pay the balance of said purchase price on the day fixed that said agent of the defendant stated to them that there was no need of the payment of the balance due at that time, and that the defendant would extend the time of payment; and that by reason of such representation the complainants did not pay the balance of the purchase price for the land on the day fixed. The complainants further averred that subsequent to that time the defendant notified them that he claimed the land as his own, and that they must pay rent for the same if they wished to retain possession of it; that by reason of the deceit practiced upon them by the defendant and his agent they were about to be deprived of said lands; and the complainants averred their ability to pay the amount due upon said lands, and asked for an accounting, and that the deed be declared void as against them, and that upon their payment of the amount ascertained to be due the titles to said lands be declared vested in them. The defendant demurred to the bill as originally filed upon several grounds. Subsequently the complainants amended their bill by averring, in addition to the averments contained in the original bill, the further facts that the original transaction between them and the defendant was intended as, and as a matter of fact was, a mortgage given by them to the defendant to secure the payment by them of the amount which the defendant had paid to...