Heard & Lee v. Heard

• Decision Date: 06 February 1913
• Citation: 61 So. 343,181 Ala. 230
• Parties: HEARD & LEE et al. v. HEARD.
• Court: Alabama Supreme Court

61 So. 343

181 Ala. 230

HEARD & LEE et al. v. HEARD.

Supreme Court of Alabama

February 6, 1913

Appeal from Chancery Court, Tallapoosa County; W.W. Whiteside Chancellor.

Bill by George Heard against Heard & Lee for reference to ascertain who has paid and how much has been paid by the respondents or either of them as purchase money, and to ascertain the amount of indebtedness between said parties, and to declare an assignment a mortgage. From a decree for complainant respondents appeal. Affirmed.

The contract referred to in the opinion is as follows: "This contract in the American Freehold Land Mortgage Company of London, Limited, of the first part, and George Heard of the second part, witnesseth: Said party of the first part agrees to lease to the party of the second part a certain piece of land described as follows: [Here follows description of 250 acres of land.] And the party of the second part agrees to pay the sum of $250 on or before Nov. 1, 1895, and do hereby pledge and mortgage for the faithful payment hereof his whole crop of cotton and corn grown and growing upon said land, for and during said year of 1895. It is further stipulated and agreed that the party of the second part shall have the privilege of making a contract for seven successive years after the present one similar to this contract, in all respects, except as to the amount to be paid as rent, which for the year 1896, shall be $205 [Here follow the amounts for the succeeding six years], and should said party of the second part renew this contract aforesaid for said seven years, and make said payments as stipulated on said land faithfully and truly for the period of eight years successively including the present year, then the party of the first part agrees to sell said land and make a warranty deed conveying the same to said party of the second part, if the said party of the second part desires to purchase the same, for the consideration of one dollar, and the amount of money with legal interest thereon expended in payments pending this contract. This agreement is, however, special and personal between the said parties of the first and second part, or his heirs, and said party of the second part cannot sell this privilege of releasing or purchasing the said land without the consent in writing of the party of the first part endorsed hereon, and it is expressly stipulated that should the party of the second part move off said land, he thereby forfeits and surrenders the privilege of releasing and purchasing as aforesaid."

Bulger & Rylance, of Dadeville, for appellants.

James W. Strother and Thad H. Watkins, both of Dadeville, for appellee.

McCLELLAN J.

On February 8, 1899, George Heard, the complainant (appellee) was in possession of the lands described in the bill. This possession was under a written contract with the American Freehold Land Mortgage Company, then holding the legal title thereto. The report of the appeal will contain a copy of that instrument. On the aforesaid date, the appellee, being then indebted to Heard & Lee (the appellants), executed to them the following transfer, indorsed on the back of the contract of his interest and rights in his contract with the mortgage company: "This is to certify that I have this day for value rec'd transferred to Heard & Lee my entire rights and interest invested in me in the within paper and this day do release to the said Heard & Lee all my rights a (as) landlord to the within described real estate." On the same day appellee executed to Heard & Lee an instrument of which the following is the substance: "Know all men by these presents that I, George Heard, have this day transferred to the firm of Heard and Lee my entire interest as landlord to a certain place on which I now live located in Tallapoosa county, state. The consideration of said transfer being a certain indebtedness to the said firm, which I now owe, now in case I, George Heard, paid the said Heard & Lee the amount in full which I now owe them or...