Jackson Realty Co., Inc. v. Yeatman

• Decision Date: 24 January 1929
• Docket Number: 6 Div. 246.
• Parties: JACKSON REALTY CO., INC., v. YEATMAN.
• Court: Alabama Supreme Court

121 So. 415

219 Ala. 3

JACKSON REALTY CO., INC., v. YEATMAN.

6 Div. 246.

Supreme Court of Alabama

January 24, 1929

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill for specific performance of a contract by John T. Yeatman, as agent, against the Jackson Realty Company, Inc. From a decree for complainant, respondent appeals. Reversed and remanded.

Fort Beddow & Ray and G. Ernest Jones, all of Birmingham, for appellant.

Lange Simpson & Brantley, of Birmingham, for appellee.

BROWN J.

This bill is filed by the appellee against appellant, a corporation, to enforce the specific performance of a contract to convey lot 2 in block 29, and lot 1 in block 34, Clifton Land Company's survey, in Jefferson county, Alabama, alleged to have been entered into between the complainant and the defendant on January 6, 1927, for a recited consideration of $950, $50 of which was paid in cash, and the balance to be paid in cash "on delivery of a satisfactory deed to purchaser. *** Conveyance to be made by warranty deed, *** subject to all existing restrictions, easements and leases, if any."

Though the certificate of the register appended to the transcript is to the effect "that the foregoing pages, numbered from one (1) to nineteen (19) inclusive, contain a true and complete transcript of the record and proceedings in said cause," the summons to the defendant, if such was issued, and the sheriff's return thereon, are not incorporated in the record.

On August 22, 1928, a decree pro confesso was entered by the register, reciting that "in this cause, it being made to appear to the register that a summons requiring the defendant, Jackson Realty Company, Inc., a corporation, to appear and plead to, or answer, the bill of complaint in this cause, within thirty days from the service of said summons upon it, was served upon it, by the proper officer, on the 21st day of July, 1928, and the said defendant having failed to plead, answer or demur to the said bill to the date hereof, it is now, therefore, on motion of the complainant, ordered and decreed that the said bill of complaint in this cause be, and the same hereby is, in all things taken as confessed against the said Jackson Realty Company, Inc., a corporation, defendant aforesaid."

On submission for final decree on the bill and the decree pro confesso, the court on August 29, 1928, entered a decree to the effect "that upon the payment into the registry of this court by the complainant of the sum of nine hundred ($900.00) dollars, within fifteen days from this date, that all rights, title and interest held and owned on January 6, 1927, and now held and owned by the respondent, Jackson Realty Company, Inc.," in and to the property described in the bill, "be divested out of the said Jackson Realty Company, Inc., and vested in the said John T. Yeatman, as agent," and further decreed "that the said Jackson Realty Company, Inc., shall within fifteen days thereafter [the payment of the money into the registry of the court] execute and deliver to the complainant, John T. Yeatman, as agent, a deed conveying all of the right, title and interest" in and to the property, "and upon its failure to do so the register of this court is ordered and directed to forthwith execute and deliver to the complainant, *** a deed conveying to said complainant all the right, title and interest of the respondent" in and to the property.

There is an absence of averment in the bill as to the nature and extent of the respondent's title, further than what may be assumed from the fact that respondent contracted to convey a good and merchantable title by warranty deed. Prince v. Bates, 19 Ala. 105; Tebeau v. Ridge et al., 261 Mo. 547, 170 S.W. 871, L. R. A. 1915C, 367. The decree of August 29th conforms to the averments of the bill and the special prayer for relief, that the respondent "be divested of all right, title and interest to said property, and that the title and interest of the said" respondent "be vested in complainant as and for a specific performance of said contract."

On the 12th of September, 1928, the respondent filed with the register a motion for a rehearing on the ground, among others, that the summons was not served on an officer or agent of the corporation authorized to receive service, but was left by the officer with a mere clerk in respondent's office, and was not brought to the notice of the defendant's officers until after the final decree was entered. So far as the record shows, this motion was not called to the court's attention, and no cognizance was taken of it by the court.

On September 21, 1928, the complainant filed a motion to amend the decree of August 29th, nunc pro tunc, and in response to this motion, the court on September 24, 1928, without notice to the respondent, "canceled and set aside"' the former decree, and, without requiring notice to be given to the defendant, ordered the register to hold a reference to determine "whether or not the respondent was, on the 6th day of January, 1927, and is now, vested with such title to the said real estate as the respondent was obligated in and by its said contract, here specifically performed, to convey to complainant, namely, a fee-simple title, to be conveyed by warranty deed, except that it be subject to all existing restrictions, easements and/or leases, if any," and further ordered: "If the register determines that the respondent was so vested, and that the register's said deed, in conveying the respondent's right, title and interest in and to said property, conveyed such title to the complainant as the respondent was bound by its contract to convey, then the register shall deliver said deed to complainant and shall forthwith pay to respondent said sum of $900 paid into the registry of the court by the complainant less the costs of court as hereinafter provided. If the register on such reference shall determine that there exists against said property any liens or incumbrances which it would have been the duty of the respondent to remove, in order to have conveyed a good and merchantable title to said property to the complainant, as required by said contract herein specifically enforced, then the register shall report his findings to the court and upon confirmation thereof the register shall forthwith proceed to pay, discharge and have removed the said liens and/or incumbrances, using the said $900, or as much thereof as shall be necessary so to do, and, said liens incumbrances having been removed, will deliver his said deed to the complainant and pay to the respondent so much of the said sum of $900 as shall remain in his hands after the payment of court...