Hunter v. Taylor

• Decision Date: 07 November 1914
• Docket Number: 669
• Parties: HUNTER v. TAYLOR.
• Court: Alabama Supreme Court

66 So. 671

189 Ala. 104

HUNTER v. TAYLOR.

No. 669

Supreme Court of Alabama

November 7, 1914

Appeal from Chancery Court, St. Clair County; W.W. Whiteside Chancellor.

Suit by J.D. Taylor against W.J. Hunter, Decree for plaintiff, and defendant appeals. Affirmed.

M.M Smith, of Pell City, for appellant.

James A. Embry, of Ashville, for appellee.

McCLELLAN J.

In the chancellor's decree overruling the demurrers to the original bill, he laid the ground of his conclusion by construing the bill as being for the sole purpose of foreclosing a mortgage, and not for the enforcement of a vendor's lien. The averments and prayer of the bill precluded this interpretation; but, since the cause was tried upon the sole theory stated in the decree overruling the demurrer and the final decree established the mortgage theory, it is not possible that any injury to respondents attended the indicated misconception with respect to the alternate theories set forth in the bill and its prayer. The chancellor's conclusion that complainant was entitled to the relief prayed, as upon the bill's object to foreclose a mortgage, was, under the evidence, correct. So it is now affirmed that whatever error attended the ruling on the demurrer was without injury to appellants.

We state these conclusions of fact from the legal evidence set forth in the record.

On the 18th day of March, 1907, J.D. Taylor, the complainant, and his wife conveyed the land here involved to G.W. Reeves taking from Reeves, who went into possession under the conveyance, notes for the deferred purchase-money payments. Reeves defaulted in the first payment, and it seems to have been generally accepted that he was and would be unable to satisfy any of the deferred payments. So, on March 30, 1908 by common consent and agreement between Taylor and wife, Lucy A., and William M. Brunley, her husband, and W.J. Hunter Lucy A. Brunley's brother, it was determined that, if agreeable to C.W. Reeves, Taylor and wife would execute conveyance of the land to Lucy A. Brunley, take a mortgage back to secure the unpaid part of the agreed purchase money, and that Reeves should execute conveyance to Mrs. Brunley so as to place in her the full title to the property. The mortgage here sought to be foreclosed is the instrument made in pursuance of this agreement. While the evidence bearing on the issues is, in large part conflicting, the consideration of all the circumstances...