Hieronymous v. Glass

• Decision Date: 09 June 1898
• Citation: 23 So. 674,120 Ala. 46
• Parties: HIERONYMOUS ET AL. v. GLASS.
• Court: Alabama Supreme Court

23 So. 674

120 Ala. 46

HIERONYMOUS ET AL. v. GLASS.

Supreme Court of Alabama

June 9, 1898

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Suit by Hieronymous Bros. against Adam Glass. From a decree sustaining a demurrer to the bill and dismissing the suit plaintiffs appeal. Reversed.

Gregory L. & H. T. Smith, for appellants.

Pillaus Torrey & Hanaw, for appellee.

COLEMAN J.

We will not undertake to set out all the averments of the bill in detail, but will make such statement as will fairly present the legal question involved in the appeal. Hieronymous Bros held the written agreement of the Alabama Land & Development Company to convey by deed to them a certain described parcel of land, upon the payment of the purchase money for the land, evidenced by three certain promissory notes, and described in said agreement between Hieronymous Bros. and said company. In pursuance of their contract of purchase, Hieronymous Bros. paid a part of the purchase money. Hieronymous Bros. assigned and transferred the written instrument executed to them by the Alabama Land & Development Company to the respondent, Adam Glass, by writing duly attested, as follows: "For value received, we hereby transfer, convey, and assign to Adam Glass all our right, title, and interest in the land embraced in the foregoing instrument, and authorize the Alabama Land & Development Company to have deed executed to the said Adam Glass covering all the land embraced in said contract. Witness our signatures," etc. Adam Glass paid the balance of the purchase money due by Hieronymous Bros., and had the deed of conveyance to all the lands executed directly to him. Hieronymous Bros. filed the present bill, in which they aver that there was a parol understanding and agreement, by and between themselves and Adam Glass, contemporaneous with and a part of the foregoing transfer and conveyance, that Adam Glass was to advance the balance of the purchase money as a loan to them, for which they were to pay him 10 per cent. per annum, and that the legal title was conveyed to him as a mere security for the loan; and the prayer of the bill is that he be declared a mortgagee, and the instrument under which he holds be declared a mortgage, and that they be let in to redeem; and offering to pay, with legal interest, whatever may be found to be due. This short statement of the facts presents the equity of complainants' case. The court sustained a demurrer to the bill, and a motion to dismiss the same for want of equity, and the appeal is prosecuted from this decree.

The demurrer to the bill and motion to dismiss for want of equity raised the question as to whether the parol agreement was valid and capable of enforcement or void under the statute of frauds. It would be a useless task to undertake to reconcile all the decisions and expressions of the court, in this state, upon the question presented for consideration. The case of Moseley v. Moseley, 86 Ala. 289, 5 So. 732 sustains the conclusion reached by the court, and expressions may be found in other cases to the same effect. The law is...