Howison v. Oakley

• Decision Date: 16 June 1898
• Citation: 118 Ala. 215,23 So. 810
• Parties: HOWISON v. OAKLEY ET AL.
• Court: Alabama Supreme Court

23 So. 810

118 Ala. 215

HOWISON v. OAKLEY ET AL.

Supreme Court of Alabama

June 16, 1898

Appeal from circuit court, Bibb county; John Moore, Judge.

Action by J. G. Oakley and others against Allen P. Howison for breach of contract for the sale of real estate. From a decree overruling demurrers to different counts of the complaint and sustaining demurrers to other counts, both parties appeal. Reversed.

The complaint as originally filed contained seven counts, which were as follows: "First. The plaintiffs claim of the defendant the sum of eight thousand nine hundred and twenty-five ($8,925) dollars, due by promissory note made by him on, the wit, the 31st day of January, 1887, and payable twelve months after the date of same, with interest thereon. Second. The plaintiffs further claim of the defendant the sum of eight thousand nine hundred and twenty-five ($8,925) dollars due by promissory note made by him on, to wit, the 31st day of January, 1887, due two years after the date of the making thereof, with the interest thereon. Third. The plaintiffs further claim of the defendant the sum of seventeen thousand eight hundred and fifty ($17,850) dollars as damages, with the interest thereon from the 31st day of January, 1887, for the breach of the following described contract, to wit: Plaintiffs aver that they are the heirs at law of William Oakley, deceased, who died, intestate, in the year 1883; that said William Oakley was at the time of his death a resident citizen of Bibb county, Alabama, and that during his life he was seised and possessed of a large estate of lands situated in sail state and county; that on or about the 10th day of July, 1883, N. P. Oakley and Fielding Oakley were duly appointed administrators of the estate of said William Oakley, deceased, by the probate court of said state and county, and that they immediately qualified as such administrators; that said administrators, on the 1st or 2d day of July, 1884, filed their petitions in said court praying that the lands belonging to said estate be sold by said court for the purpose of division among the heirs of said estate; that on the hearing of said petition by said court the said lands of said estate were decreed to be sold at public outcry to the highest bidder, in accordance with the prayer of said petitions, for the purpose of division among the heirs of said estate, and that the said lands should be sold on a credit of one and two years, one half of the purchase price to be paid in one year and the other half in two years from the date of the sale, and each payment be secured by note with approved security; that due and legal notice of said sale was given as required by law; that in pursuance of said decree and notice, and by the authority of said court in them vested for said purpose, they did expose for sale, as aforesaid, said lands; that at said sale the defendant, A. P. Howison, did become the highest bidder for a portion of said lands, to wit, two thousand and forty (2,040) acres, at the price of eight dollars and seventy-five ($8.75) cents per acre, amounting in all to seventeen thousand eight hundred and fifty ($17,850) dollars; that the terms of said sale were, as aforesaid, one half payable in one year and the other half in two years from the date of the sale, which sums were to be secured by the note of the purchaser with approved security; that the defendant well knew the terms of said sale at the time he bid off said lands; that said defendant did and does now, fail and refuse to comply with the terms of his said purchase,-that is, to give notes for the purchase price with approved security, in accordance with the orders of said court and terms of said sale, and as he had promised to do but has wholly failed so to do,-to the damage of the plaintiffs in the sum of seventeen thousand eight hundred and fifty ($17,850) dollars, with interest thereon from the 31st day of January, 1887, the date of said sale, for which they sue. Fourth. The plaintiffs claim of the defendant the sum of seven thousand four hundred and thirty-six ($7,436) dollars with interest thereon from the 31st day of January, 1887, as damages by reason of the breach by him of the following contract, to wit." Here follow substantially the same allegations as contained in the third count as to the plaintiffs being the heirs at law of William Oakley, and to the sale of the land under the probate court proceedings, and of the purchase thereof by A. P. Howison, the defendant. This count then avers as follows: "That the said defendant did then, and does till yet, refuse and fail to perform his part of said contract of purchase, in this: that he has always, and does now, refuse and fail to execute or give the notes, with approved security, for the amount of his bid, and according to his promise so to do, and according to the terms of said sale and the orders and decrees of the said court, all of which he well knew at the time he bid off and became the purchaser of said lands as aforesaid; that the said administrators, as required by law, reported back to the court the proceedings of said sale, as aforesaid, and the defendant's failure to give the notes, with approved security, for the purchase price, according to the contract of sale and the previous orders and decrees of the court; that on the hearing of said report by the court it was ordered by the court that said lands be resold, on account of his failure to give notes, with approved security, as ordered by the court, and as he had promised to do, as aforesaid; that said lands were again offered for sale by said administrators by virtue and under the orders and decrees of the court for the purpose aforesaid; that due and legal notice of said sale was again given as required by law for such purposes; that the defendant had notice of all such orders, decrees, and notices, and at the next sale of said lands, as aforesaid, to wit, on the 4th day of November, 1889, the said defendant again became the best and last bidder of said lands, and which were knocked off to him as the purchaser at much less price than before, to wit, at the price of five dollars and thirty-five cents ($5.35) per acre, amounting in all to ten thousand nine hundred and fourteen ($10,914) dollars, being six thousand nine hundred and thirty-six dollars ($6,936) less than his bid at the first sale; the defendant having complied with the terms of the last sale, the same was reported back to the court, as aforesaid, and a deed ordered to be made to the defendant conveying said lands, which was accordingly done, as required by law; that in consequence of defendant's failure to give notes, with approved security, as required by the orders and the decrees of the court, and the terms of the first sale, as aforesaid, expenses and costs incurred necessarily in making the last sale to the amount of five hundred ($500) dollars; wherefore the plaintiffs claim the sum of seven thousand four hundred and thirty-six ($7,436) dollars, with interest thereon, or damages equivalent thereto, for his failure, as aforesaid, to comply with the terms of the first sale, as aforesaid, for which they bring their suit. Fifth. The plaintiffs further claim of the defendant the sum of seven thousand four hundred and thirty-six ($7,436) dollars, due by an account stated by and between plaintiffs and the defendant on the day, to wit, the 31st day of January, 1887. Sixth. The plaintiffs further claim of the defendant the sum of seven thousand four hundred and thirty-six ($7,436) dollars, due for merchandise, lands, and chattels sold by the plaintiffs to the defendant the day, to wit, the 31st day of January, 1887. Seventh. The plaintiffs further claim of the defendant the sum of seven thousand four hundred and thirty-six ($7,436) dollars, due for money had and received by the defendant to the use of plaintiffs on, to wit, the 31st day of January, 1887, which amount, with the interest thereon, is now due and unpaid."

To the different counts of the complaint the defendant interposed many demurrers, as follows: To the first and second counts he demurred upon the following grounds: (1) That it was not averred in either of said counts to whom said note declared upon was payable; (2) because it was not shown by the averments of either of said counts that the complainants are the owners of said notes, or have any interest therein. To the third count of the complaint the defendant demurred separately upon the following grounds: (1) Said count fails to aver that the plaintiffs are all the heirs at law of William Oakley, deceased; (2) said count does not show that any contract had ever been entered into between the said plaintiffs and the defendant; (3) that the said count does not show that there has been a resale of the land therein specified; (4) that it is not shown in said count that the sale of the land there referred to was fairly conducted; (5) that said count does not aver that the first sale was confirmed by the probate court as to the defendant, and the resale ordered; (6) that said count does not aver that the second sale was had upon the same terms as the first sale. To the fourth count the defendant demurred upon the following grounds: (1) That said count is framed for the purpose of recovering the difference between the two sales of land there referred to as on a contract, and does not state or aver that the condition of said first sale was that, if the purchaser failed to comply, the land was to be resold at his risk; (2) that said count does not aver or show that either of said sales was fairly conducted; (3) that said count does not aver that the first sale was confirmed by the probate court as to the defendant, and a resale ordered; (4) that said count does not aver that said second sale was had upon...