Harrison v. Yerby

• Decision Date: 04 December 1893
• Citation: 14 So. 321
• Parties: HARRISON ET AL. v. YERBY.
• Court: Alabama Supreme Court

14 So. 321

HARRISON ET AL. v. YERBY.

Supreme Court of Alabama

December 4, 1893

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs, Judge.

Bill by J. Stephen Yerby against J. Calhoun Harrison and others to have defendant Harrison enjoined from the sale of certain lands under a mortgage, and that said mortgage held by Harrison be canceled and annulled as a cloud on the title of the complainant, Yerby; and that one J. O. Prude, holding a note which had been given for the purchase money, be enjoined from the collection of the same. Upon the final hearing of the cause on the pleadings and proof the chancellor granted the relief prayed for in the bill, and made the injunction against the defendants J. C. Harrison and Lupton perpetual and further decreed, it appearing to the court that the "complainant had paid into court the amount due on the note held by J. O. Prude, that the injunction, as to Prude heretofore issued, be perpetuated." From this decree the defendants appeal, and assign as error this decree of the court. Reversed.

This is the second appeal in this case. 87 Ala. 185, 6 So. 3. The original bill was filed November 10, 1888, by J. Stephen Yerby against J. C. Harrison, George F. Lupton, and James Prude. Its purpose was to enjoin an attempted mortgage sale and to set aside the said mortgage, and to enjoin the collection of the note held by J. O. Prude until such time as the defendant Lupton should be able to make a warranty deed free from all incumbrances, conveying the property in questions to the complainant. All the facts are set out at length in the report of the case, as found in 87 Ala. 185, 6 So. 3. J. C. Harrison owned certain lands near tuscaloosa and on April 16, 1887, sold the same to the defendant Lupton for $4,000. On the same day, Lupton mortgaged the property to Harrison for the unpaid purchase money. Lupton, upon the purchase of said property, divided the same into eight lots, and placed them in the hands of J. C. Harrison & Co., real-estate agents at Tuscaloosa, for sale. This firm was composed of J. C. Harrison, J. I. Harrison, and M. G. Harrison. On April 21, 1887, J. C. Harrison, as real-estate agent of said Lupton, sold two of the lots (1 and 2) to Yerby for $1,950. Six hundred and fifty dollars of the purchase money was paid in cash, and two notes for $650 each, due, respectively, 12 and 18 months after date, were executed by the said Yerby to Lupton. Lupton, thereupon, the same day, executed his bond for title to said Yerby, in the usual form. Subsequently, on August 6th, Lupton sold another lot (3) of said property to the complainant, Yerby. This sale was completed in the office of J. C. Harrison & Co., with the assistance of J. C. Harrison. This lot was sold for $700,-$500 cash, and a note for $200, due April 10, 1888. Lupton also executed his bond for title to said Yerby for this lot on the day of the purchase. The first note was discounted by Yerby on May 7, 1887, and the second note, for $650, was delivered to said J. O. Prude, by Lupton, as collateral security for the payment of a bill of exchange drawn by Lupton, and said Prude held this note at the time of the filing of the bill. The bill alleged that Yerby had no knowledge of the mortgage from Lupton to J. C. Harrison at the time of the purchase of the lands, but was kept in ignorance of the same by the fraudulent conduct of Harrison and Lupton. In default of the payment of the purchase money due from Lupton to Harrison, he (Harrison) was about to sell the property under that mortgage, and the bill was filed by said Yerby to enjoin the said sale. Harrison and Lupton answered the bill under oath, and denied the allegations of fraud, setting up that Yerby knew of the mortgage in question, that he was distinctly told of the same, and that he bought with the knowledge of its existence. These answers were full and in detail. Upon the second trial of the cause in the chancery court, Harrison filed an amended answer to the original bill, setting out various matters and facts tending to show knowledge on the part of Yerby as to the existence of the mortgage in question. On September 21, 1891, the complainant amended his original bill, alleging that said mortgage held by the defendant Harrison, and executed by Lupton, has been fully settled by the discharge of the mortgage debt, but that the defendant Harrison nevertheless...