Hill v. Weil

• Decision Date: 19 December 1918
• Docket Number: 3 Div. 355
• Citation: 202 Ala. 400,80 So. 536
• Parties: HILL v. WEIL.
• Court: Alabama Supreme Court

80 So. 536

202 Ala. 400

HILL v. WEIL.

3 Div. 355

Supreme Court of Alabama

December 19, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill by Isadore Weil against E.L. Hill. Decree for complainant, and defendant appeals. Affirmed.

Hill Hill, Whiting & Thomas, of Montgomery, for appellant.

Steiner Crum & Weil and Weil, Stakely & Vardaman, all of Montgomery for appellee.

SAYRE J.

We made a statement of the law of this case in Weil v. Hill, 193 Ala. 407, 69 So. 438, and to that report we now refer for a statement of the facts also. Upon its return to the trial court and after an amendment which failed to affect the equity of the bill, the testimony of appellant's grantor Mrs. Winn having been taken, the judge of the circuit, sitting in equity, very properly held that the case differed from the case considered by this court on the former appeal in this respect only: That it had been made to appear in the meantime that Mrs. Winn, when she accepted Young's conveyance of the Rugely lot, was a minor, and that at that time she had a parol agreement with Young by the terms of which she was relieved of her implied covenant when Young sold his lot (fronting on Perry street) to Clisby. The judge, further holding that the alleged parol agreement had been merged in the recorded conveyance and that the infancy of defendant's (appellant's) grantor did not militate against the equity asserted by complainant because by that conveyance she had, several years after attaining her majority, ratified the implied covenant of the conveyance under which she held, entered a decree granting the relief prayed in complainant's (appellee's) bill. Defendant has again appealed.

Appellant quotes a definition of estoppel in pais from Clanton v. Scruggs, 95 Ala. 279, 10 So. 757--a definition that was quite sufficient for the purposes of that case--and asks that some statement be made on paper of the facts that created an estoppel in this case. Bringing our statements of conclusion into a new collocation, we need only refer to the record of the former appeal where we noted, along with relevant and established principles of law, that Mrs. Winn, then Josie Hubbard, by her acceptance of the deed to the Rugely lot, containing the clause in question, agreed for herself and her assigns that no house or other structure should ever be erected on the lot she previously owned nearer to Perry street than the house then standing on the lot. We also noted that the effort of appellee's bill was to enforce a notional counter grant, or a covenant implied by the grantee's acceptance of the benefits of the deed to him. On the theory that appellant was estopped, we sustained the equity of the bill. The facts averred are now proved, and our judgment is that appellant is estopped because with a knowledge of the covenant of the recorded deed, actual or necessarily and conclusively imputed to him, he accepted a title which was affected thereby. Webb v. Robbins, 77 Ala. 176, Morris v. Tuskaloosa Mfg. Co., 83 Ala. 565, 3 So. 689, Mayfield v. Cook, 77 So. 713, and other cases cited by appellant to this point, are wholly foreign to the question involved...