Henderson v. Coon

• Decision Date: 13 May 1943
• Docket Number: 4 Div. 280.
• Citation: 244 Ala. 324,13 So.2d 564
• Parties: HENDERSON v. COON.
• Court: Alabama Supreme Court

13 So.2d 564

244 Ala. 324

HENDERSON v. COON.

4 Div. 280.

Supreme Court of Alabama

May 13, 1943

Mizell & Pearson, of Andalusia, for appellant.

P.B Traweek and J.C. Fleming, both of Elba, for appellee.

FOSTER Justice.

In this case, the purpose and equity of the bill filed by appellee against appellant are stated on the former appeals. Coon v. Henderson, 240 Ala. 492, 199 So. 704; Id., 242 Ala 144, 5 So.2d 397.

After remandment there was a reference, and a report of the register, a decree confirming the report, with no exceptions to it filed, in which the court adjudged that complainant's equity be established and granted, and that respondent in possession of the land had received amounts of rents, crops and other charges exceeding by $399.80 the aggregate of the charges found by the court to be presently payable by complainant to effect a redemption, and ordered the register to convey to complainant the land in question without prejudice to the rights of the two mortgagees. One of those mortgages was to the Federal Land Bank, which W.F. Coon had assumed, and the other to the Land Bank Commissioner one-half of which he assumed. Both were payable in deferred installments.

The mortgage to the Federal Land Bank was on the land when respondent first purchased it, and no showing is made that he became personally bound to pay this mortgage, and it covers only the land here in question. Two of the items charged to complainant were installments on this mortgage, one of which had been paid by respondent and one remained unpaid. The entire amount had not been declared payable by the Federal Land Bank, although there is an acceleration clause.

To the extent that the decree provided that the redemption was without prejudice to that mortgage, but did not require complainant to pay that part of it not then due as a condition to redemption, it was not prejudicial to respondent and he does not complain of it. But the mortgage to the Land Bank Commissioner embraced land not here involved as well as that also. Respondent had executed it and was personally liable for its payment. The mortgagee would not split up the matter for them. The contract between respondent and W.F. Coon contained provisions, which the parties call an equitable mortgage, and it was so treated on the first appeal, to secure each against a failure of the other to pay his moiety of the debt.

Respondent has in his possession funds for which he should account on a redemption by complainant.

We think the proper method of stating the account is to charge complainant with the amount paid by respondent to the Federal Land Bank, for which he was not personally liable, but for which W.F. Coon became liable, and the interest on it (but we need not here be concerned with the balance of that debt, for reasons which will be stated later); to charge her with one-half of the amount paid by respondent to the commissioner, and also charge her with one-half of the entire balance owing the commissioner, whether delinquent or not, since W.F. Coon agreed to pay that, and since respondent is personally liable to the commissioner for it all. This is on the theory that this situation reflects the relations of W.F. Coon and respondent under their agreement, by which Coon owed the respondent the duty to discharge one-half of that debt. It would not discharge that obligation to allow a redemption upon payment of one-half of the delinquencies with no provision for paying the balance, for if she did not later fulfill Coon's obligation to pay half of their debt, it would require respondent to pay it all, because he is obligated to the commissioner to pay it all, and it would be necessary to do so to save his other land in the same mortgage. But the payments to the commissioner are in annual installments extending to 1946. A court of equity, in decreeing specific performance (redemption here is dependent upon a performance) of the contract, does not ordinarily undertake to direct and supervise a performance which requires installment payments covering a number of years, and it will often deny such relief when it cannot dispose of the matter in controversy "by a decree capable of present performance." Electric L. Co. of Mobile v. Mobile & Spring Hill Ry. Co., 109 Ala. 190, 195, 19 So. 721, 723, 55 Am.St.Rep. 927; Stewart v. White, 189 Ala. 192, 66 So. 623; Roquemore & Hall v. Mitchell Bros., 167 Ala. 475, 52 So. 423, 140 Am.St.Rep. 52; Bessemer C., I. & Land Co. v. Bullard, 215 Ala. 433, 111 So. 5; Tombigbee Valley R. Co. v. Fairford Lumber Co., 155 Ala. 575, 47 So. 88.

We think the present situation is illustrative of one in which this should not be done. If the accounts are not presently adjusted, but the parties are left free to pay one-half of the debt to the commissioner, it would be difficult to formulate a decree at present which would do complete justice to respondent.

In redeeming complainant must discharge the obligation of W.F. Coon to respondent, completely insofar as he may be prejudiced by not doing so. Literally that is to be performed through the years. The payment of one-half of the debt due the commissioner is an obligation owing respondent, as assumed by W.F. Coon. A failure to discharge it would be prejudicial to respondent. Complainant, if she redeems now, must satisfy that obligation so as to protect respondent from liability for her failure to do so. And she should do this as a condition to her redemption, and as a completed occurrence. But it is not all due now, so she cannot pay the debt to the commissioner now. The court will not deny her relief if there is some method of rendering a decree so that the parties will presently have their rights adjusted and secured.

The procedure here outlined will protect respondent fully and discharge complainant from further performance, whose failure would be prejudicial to him. But it would not completely protect complainant against a default of respondent, but the best we can do for her is to retain that fund in court until the land is discharged from the debt of the commissioner. If complainant does not see fit to accept our decree, she is under no obligation to do so.

The register stating the account properly charged complainant with $138.95, being one-half of the payment made by respondent to the commissioner on a delinquent installment due October 1, 1939, together with one-half of the installments on that mortgage which were due October 1, 1939, 1940 and 1941, respectively, and also properly charged her with $151.68 as having been paid by respondent to the land bank on November 14, 1940, and with a fire insurance premium of $33.50. But should not have charged her with the delinquent payment to the land bank due November 1, 1941. Respondent was under no obligation to pay this, and did not pay it. In respect to all features of that mortgage, it is sufficient to allow a redemption subject to it; for complainant will be forced to pay it for the protection of her title and her failure to do so will not prejudice respondent. But that is not true as to the mortgage to the commissioner. Respondent owes that to the commissioner. She must discharge one-half of it to effect redemption, and that amount should be charged against her in a statement of the accounts. She was properly credited by the register in his statement, but interest to May 1, 1943 should be added.

Complainant claims an additional credit for the farm benefits paid by the Government. Parity and conservation checks were paid to respondent for the year 1940. They aggregate $164. This is a bounty paid by the Government and it is usually intended for him who cultivates the land and produces crops. Spence v. Spence, 239 Ala. 480(7), 195 So. 717; Durr Drug Co. v. Acree, 241 Ala. 391, 2 So.2d 903(13).

Parity payments are provided for in section 303 of the Agricultural Adjustment Act of 1938, see Title 7 U.S.C.A. § 1303, aided by section 608e, Title 7 U.S.C.A. defining the base period, and the Deficiency Appropriation Acts.

Conservation of cotton land is provided for in section 381(a) of the Agricultural Adjustment Act of 1938, supra, Title 7 U.S.C.A. § 1381(a). This provides that payment shall be made directly to each person entitled thereto.

Section 385 of the Act as amended July 2, 1940, see 7 U.S.C.A. § 1385, provides that the facts constituting the basis of conservation and parity payment shall, when officially determined as there provided, be final and conclusive and shall not be reviewable by any other officer or agency of the Government (see Title 16, section 590n), but that "in case any person who is entitled to any such payment dies, becomes incompetent, or disappears before receiving such payment, or is succeeded by another who renders or completes the required performance, the payment shall, without regard to any other provisions of law, be made as the Secretary of Agriculture may determine to be fair and reasonable in all the circumstances and provide by regulations. As amended July 2, 1940, c. 521, § 7, 54 Stat. 728."

The amendment of July 2, 1940, also made provision looking to adjustments by the administrators of the Act between the payee and third persons. See 7 U.S.C.A. § 608--1.

The instructions issued by the United States Department of Agriculture contain the following:

K(1) "If a creditor, including the landlord or operator of the farm, harvests the crop of his debtor, he does not become a producer on the farm with respect to the crop unless he acquires complete title to the crop and has the right to harvest the crop as he wishes and for his own account without the necessity of accounting to the debtor for the proceeds of the crop. If the creditor does not acquire complete title to the crop and must account to the debtor for the...