Head v. Hunnicutt

• Decision Date: 20 April 1911
• Citation: 55 So. 161,172 Ala. 48
• Parties: HEAD v. HUNNICUTT.
• Court: Alabama Supreme Court

55 So. 161

172 Ala. 48

HEAD v. HUNNICUTT.

Supreme Court of Alabama

April 20, 1911

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Ejectment by M. M. Head against J. W. Hunnicutt. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The controversy seems to be to recover the western one-third of a lot upon which is situated a commissary of the Hunnicutt Lumber Company and the stables of J. W. Hunnicutt. The lot is described as 1 1/3 acres in the S.W. 1/4 of the S.E. 1/4 section 28, township 23, range 10 E., in Bibb county, Ala beginning at the southeast corner of the Sandy Church lot on the north side of Randolph and Centerville public roads thence north along said church lot line 55 yards; thence east 132 yards; thence south 55 yards; thence west 132 yards to the point of beginning. It seems that J. M. Hunnicutt and W A. Neal owned all the stock of the Hunnicutt-Neal Lumber Company, and desired to divide their property, each owning and controlling one-half of the capital stock of the company and in pursuance thereof entered into the following agreement:

"That whereas, the said parties hereto own and control all of the capital stock of the Hunnicutt-Neal Lumber Company, a corporation, each owning and controlling one-half thereof, and the other property hereinafter named, and desirous of dividing their interest, so that one of said parties may acquire all of the capital stock, and therefore the exclusive control, of said company, and to further effect a division of their other property and a part of the corporate property, do hereby mutually agree: (1) That J. W. Hunnicutt will have until noon of the 20th day of November, 1907, to accept by written indorsement thereon or by a separate paper writing the certain properties described in either of the items hereto annexed, marked items No. 1 and No. 2, leaving the property and the other said items to the said W. A Neal. If the said Hunnicutt shall fail by noon of said day to make known as aforesaid which of said items he accepts, then said Neal may select any one of such items after noon of said day and before noon of November 25, 1907, by indorsement thereon or by separate paper writing, and the other of said items shall belong to said J. W. Hunnicutt. The said items, and also item No. 3 hereto annexed, are hereby referred to and made a part of this agreement. Immediately after this agreement becomes binding by indorsement hereon or by separate paper writing the Hunnicutt-Neal Lumber Comny shall convey to J. W. Hunnicutt and W. A. Neal jointly the lands and timber rights mentioned in item No. 2, and the party who under the provision provided in this agreement becomes entitled to the property and rights described in item No. 1 shall convey to the other an undivided half interest in the lands mentioned in item No. 2 for the consideration of $13,500, with general warranty, such sum representing the estimated value of such interest in said land, and the said Hunnicutt-Neal Lumber Company shall transfer to said party becoming entitled to item No. 2, the Lathrop Lumber Company's note, indorsing the same without recourse, and other rights mentioned in item No. 2. (2) The party becoming entitled to the property described in item No. 1, the other party will cause the transfer of one-half of the capital stock of the Hunnicutt-Neal Lumber Company. The lands in Cleburne and Tuscaloosa counties owned by the Hunnicutt Lumber Company are to be conveyed by the said company to J. W. Hunnicutt and W. A. Neal jointly, and the party becoming entitled to item No. 2 shall convey the same to the party acquiring item No. 1 (or to the Hunnicutt-Neal Lumber Company) an undivided half interest in said lands, and an undivided third interest in the lands in Cleburne county owned by J. W. Hunnicutt and W. A. Neal, jointly (Crider, Herren, Evans, Jackson, Shackelford, and Wheeler lands; Vaughan retaining his interest), and an undivided one-half interest in the Anna Howe extension interest held in the name of B. W. Vaughan, with good and sufficient warranty, the deed to recite the consideration of $9,750, being the estimated value of such interest in said land.

"Item No. 1. All the capital stock of the Hunnicutt-Neal Lumber Company; the lands in Cleburne county known as the Crider Herren, Evans, Jackson, Shackelford, and Wheeler lands, two-thirds undivided interest; the Woodstock Iron Company lands; the interest in the Anna Howe extension land held by W. A. Neal, J. W. Hunnicutt, and D. W. Vaughan, with the lands in Tuscaloosa county known as the Derrett lands--the party acquiring this item No. 1 to have just such rights as regards this land (the Derrett land) as the company now has--may buy the land and acquire the title or retain the money to be applied to such persons, if not made, which is agreed to be left in the treasury of the company ($3,000) for that purpose. The party accepting this item is to have the $500 which is with the First National Bank of Tuscaloosa, Ala.; a sufficient amount of cash now on hand, and, if not sufficient cash on hand, it shall be supplemented by notes, accounts, and bills receivable to pay the debts of the company up to the date of the transfer; the money in bank to be treated as cash or as an account at the election of the party acquiring item No. 1. This item is also to include any other interest in the said Anna Howe extension held by said Hunnicutt and Neal; also all the lands and timber rights held in the names of Hunnicutt & Neal, W. A. Neal, and J. W. Hunnicutt, situated in Bibb county, Alabama, to be conveyed without warranty; all the lands in Tuscaloosa county owned by the Hunnicutt-Neal Lumber Company (additional to the Derrett lands...