Kibbe v. Scholes

• Decision Date: 13 June 1929
• Docket Number: 6 Div. 227.
• Citation: 123 So. 61,219 Ala. 571
• Parties: KIBBE v. SCHOLES ET AL.
• Court: Alabama Supreme Court

123 So. 61

219 Ala. 571

KIBBE v. SCHOLES ET AL.

6 Div. 227.

Supreme Court of Alabama

June 13, 1929

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

Bill in equity by James L. Kibbe against James Scholes and others. From a decree sustaining a demurrer to the amended bill and overruling respondents' plea in abatement, complainant appeals, and respondents cross-assign errors. Reversed and remanded.

Demurrers challenging certain features of bill held erroneously sustained to bill as whole.

In the bill as originally filed James Scholes was sole party defendant. Thereafter the death of defendant was suggested and on motion the suit was revived against Andrew J. Scholes and James P. Scholes, as administrators of his estate. By amendment Margaret T. Chambers was added as a party defendant.

The original bill alleges that April 20, 1921, complainant and respondent entered into an agreement whereby complainant agreed to buy and respondent to sell certain described real estate, then owned by respondent in fee simple, for a consideration of $3,000, by the terms of which the purchase price was to be paid in monthly installments, and it was agreed that when one-half the purchase price was paid respondent would execute to complainant a warranty deed. It is further alleged that, notwithstanding complainant has paid more than one-half the purchase price, respondent has refused to execute said conveyance, and that complainant is still ready and willing to pay the purchase money on said property and to execute a mortgage securing the balance. It is further alleged that "respondent has taken possession of said real estate and has been in possession thereof since about March 27, 1925; that complainant was forced, through fear, intimidation and threats, to vacate the premises without due process of law that as a result of said deprivation complainant has suffered great damage in paying large sums of money for moving and rent of residence; that he was subjected to physical hardship and mental anguish, was embarrassed and humiliated among his friends and neighbors, all to his damage, and as a proximate consequence of said acts of respondent, or his agent or attorney within the line and scope of employment."

It is prayed that respondent be required to execute to complainant a sufficient conveyance to said property, according to the terms of the mentioned contract, and that a decree be entered against respondent for $1,000 damages for the wrongful ejectment from the premises and for the withholding of the conveyance prayed.

By amendment filed March 12, 1926, the bill was substantially rewritten, alleging in more detail the matters set forth in the original bill, alleging that the contract or agreement of sale and purchase was in writing, and attaching a copy thereof as an exhibit to the bill.

Paragraph 5 of this amended bill reads: "Complainant further alleges that respondent has taken possession of said real estate described in attached exhibit 'A' and has been in possession thereof since on or about March 27, 1925, to complainant's best information, knowledge and belief; that complainant was forced through fear, intimidation and threats to vacate the said premises without due process of law in this: That the respondent sent or caused to be sent a deputy sheriff, or a party representing himself to be a deputy sheriff to the above mentioned premises, then occupied by complainant as a homestead, and that the said party either as a deputy sheriff or as a party representing himself as a deputy sheriff, acting under the orders and instructions of the respondent, ordered complainant to immediately vacate the premises or he, the said sheriff or deputy sheriff, would immediately put him out with his family and place all his household goods out on the ground; that as a result of said deprivation complainant has suffered great damage in paying large sums of money by moving his household goods, and for rent of a new residence, and other expenses; that he was subjected to physical hardships and mental anguish, was embarrassed and humiliated among his friends and neighbors all to his damage, and as a proximate consequence of said acts of respondent, or his agents acting within the line and scope of their employment."

It is prayed that notice of the filing of said amendment to the bill be given to the respondent in manner and form prescribed by the rules and practices of the court, followed by a prayer for the relief sought in the original bill.

February 11, 1927, a second amendment was filed. By this amendment Andrew J. Scholes and James P. Scholes, as administrators with the will annexed of James Scholes, deceased, and Margaret T. Chambers are made parties defendant.

Paragraph 1 of this amendment reads: "That on the 2nd day of June, 1925, the complainant filed his original bill of complaint in this cause, upon which summons issued and that the original complainant, James Scholes appeared herein on July 6th, 1925, and that complainant, after demurrer to his first bill was sustained, filed his first amended bill in this cause on March 12th, 1926, which said original bill and said first amended bill, together with exhibits thereto and all parts thereof, are by reference thereto made a part and parcel of this, complainant's second amended bill as if said original and said first amended bill and exhibits thereto were set out in haec verba herein."

Paragraph 2 alleges that, "as set out in said original and in said first amended bill," defendant James Scholes, on or about April 20, 1921, entered into a contract with complainant to sell complainant the real estate described, said contract being in writing and the original thereof being attached to the first amended bill, and by reference made a part of this, second amended bill; that by the terms of said contract defendant agreed and bound himself to convey said property by warranty deed to complainant when complainant had paid as much as one-half the purchase price, and to take a mortgage back for the deferred payments.

Paragraph 3 alleges that, pursuant to said contract, complainant entered upon the premises, paid defendant $400 cash and thereafter, by installments, paid said James Scholes the further sum of $1,400, interest and various sums as taxes, etc., and thereupon demanded of said Scholes a warranty deed in accordance with the contract; but that, though more than one-half the purchase price had been paid, defendant Scholes failed, neglected, and refused to execute and deliver any conveyance to complainant, but on the contrary, while so in default under the contract in his failure to convey as he was bound to do thereunder, said defendant deprived complainant of possession of said premises "as is set out in the original and first amended bills in this cause," to complainant's injury and damage as set out herein and "especially in paragraph 4 of complainant's first amended bill."

Paragraph 4 alleges that, after depriving complainant of possession as aforesaid, defendant James Scholes, while still in default under the contract and in violation of the subsisting rights and equities of complainant, did on or about August 17, 1925, attempt to convey said premises, by instrument in form of warranty deed, to defendant Margaret T. Chambers, which said instrument was placed of record (giving book and page) in the probate office of Jefferson county, which record and outstanding instrument cast a doubt, shadow, and cloud on the right, title, and interest of complainant; that, though said transaction appears of record and on the face of the instrument itself as a bona fide transaction, complainant is informed and believes and so states and charges that before and at the time of the execution and delivery of said instrument defendant Chambers was aware of complainant's right, title, and interest in the premises, or was in possession of facts brought to her attention sufficient to put her upon inquiry concerning complainant's said right; that the consideration recited in the deed was inadequate in view of the value of the property at the time; and that said instrument does not state the true consideration thereof; and that, as to the right, title, and interest of complainant then and now subsisting, defendant Chambers was not an innocent purchaser and should not continue in possession.

By paragraph 5 complainant offers to do equity upon execution of warranty deed to him in accordance with the contract, and asserts his readiness, willingness, and ability to resume payments, execute mortgage, etc. This paragraph further alleges the fact of the death of original defendant and the issuance of letters testamentary to defendants Andrew J. and James P. Scholes.

There is prayer for process against said administrators and Margaret T. Chambers as defendants; that an order of reference be made and entered directing the register to ascertain the amount due the estate of James Scholes original defendant, by complainant under the contract in suit and the amount of damage sustained by complainant as alleged in the bills and to resolve and determine any other amounts or accounts due by defendants in their official or personal capacities to complainant or to become due under the decree of the court finally rendered in the cause; that on final hearing title to the premises described be vested by decree in complainant, subject to a mortgage for the balance due on the purchase price under the contract, and to the compliance with and performance of any equitable condition required of complainant by the court; that the pretended conveyance by original defendant to Margaret T. Chambers be decree null and of no effect as affecting the title, interest, etc., of complainant; that said conveyance and the...