Lang v. Stansel

• Decision Date: 23 April 1895
• Citation: 17 So. 519,106 Ala. 389
• Parties: LANG ET UX. v. STANSEL.
• Court: Alabama Supreme Court

17 So. 519

106 Ala. 389

LANG ET UX. v. STANSEL.

Supreme Court of Alabama

April 23, 1895

Appeal from circuit court, Pickens county; S. H. Sprott, Judge.

Action of ejectment by M. L. Stansel against Bennett M. Lang and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

The defendants pleaded the general issue, and the following special plea: "That, at the time the lands in this suit were sold under the deed of trust in this case, there was no contract in writing evidencing said sale and purchase, and the same is void under the statute of frauds." To this special plea the plaintiff filed the following replication "Comes the plaintiff, and, for replication to the plea of the defendants herein, says that at the sale of the lands described in this cause there was a memorandum of said sale kept, showing the property sold, the name of the purchaser the name of the person for whose account said sale was made together with the terms of said sale; that said memorandum was in writing, and was kept by the auctioneer, his clerk or agent, and a deed was at once executed to the purchaser." On the trial of the cause, as is shown by the bill of exceptions, the plaintiff introduced in evidence the following deed of trust: "Whereas, heretofore, to wit, on the 3d day of July, 1876, B. M. Lang being indebted to J. N. Blanton in the sum of about twelve hundred dollars on judgments on which executions issued, and a sale thereunder was made by the sheriff of said county of the lands belonging to B. M. Lang, and the beneficiary in said judgments was paid in full by J. N. Blanton, and in consideration thereof B. M. Lang and wife conveyed to J. N Blanton the lands hereinafter described, known as the 'Bennett Lang Lands,' conveying a fee-simple title in and to said lands; and whereas, the said B. M. Lang paid to said J. N. Blanton the amount of his indebtedness with moneys which the said Bennett M. Lang held in his capacity as the administrator of Alberta Lang, which moneys belonged to said estate; and whereas, the said Bennett Lang has requested said J. N. Blanton to reconvey the said lands to him; and whereas J. N. Blanton, having received said money, trust funds of said estate, agrees to reconvey said lands to Sallie Lang the wife of B. M. Lang, on condition that a trust on said lands be raised and created, by which the said trust money may be paid to those to whom it belongs; and whereas, the said Bennett Lang and the said Sallie Lang agree that said trust and debt on said lands shall be made, creating a charge on said lands for the sum of fifteen hundred ($1,500) dollars, which trust, it is covenanted, shall be enforced by a sale under this conveyance, as in cases of foreclosing mortgages under the statute, or by bill in chancery, to foreclose the same, which sale and foreclosure shall not be within twelve months from this date, the said sum to bear interest from the date of these presents, and it is covenanted and agreed that the lands herein conveyed to th said Sallie Lang, charged with said trust aforesaid, shall be and is made the equitable separate estate of the said Sallie Lang, free from any control of her said husband, and not liable for any debts which he may contract for himself or household, except as aforesaid: Now, therefore, in consideration of the premises, this indenture made and entered into this day, the said Sallie Lang, B. M. Lang, and J. N. Blanton covenanting and agreeing to perform each and every act and stipulation hereinbefore set forth, the said J. N. Blanton, on said consideration, does grant, bargain, sell, and convey unto the said Sallie Lang, and her heirs and assigns forever, the following described real estate in said county, to wit, E. 1/2 of S.E. 1/4 section 18, S.W. 1/4 and W. 1/2 of E. 1/2 of N.W. 1/4 section 17, and E. 1/2 of S.W. 1/4 and W. 1/2 of S.E. 1/4 of section 16, all in township 21, range 16 west, with the tenements and appurtenances thereto belonging, also all the estate, right, title, or interest in said lands which was in the said Blanton, to have and to hold said real estate unto the said Sallie Lang in fee, subject and charged with the said trust hereinbefore set out and described, which trust, it is covenanted and agreed, shall be executed, in case of default, by some suitable person to be appointed in writing, by any person interested in said trust fund. And Lucy Blanton, the wife of J. N. Blanton, joins in making the conveyance with her husband, and Sallie Lang, party aforesaid, and her husband, B. M. Lang, accept this conveyance, and take possession of said lands, with the express understanding and agreement that the trust hereinbefore created and charged on said lands shall be enforced. Given under our hands and seals this 10th day of January, 1883. [Signed] J. N. Blanton. B. M. Lang. Sallie E. Lang. Lucy Blanton." The defendants objected to the introduction of this deed in evidence, on the grounds that whatever rights were conveyed by said instrument could only be enforced in a court of chancery, and that the same were not cognizable in a court of law. The court overruled this motion, and allowed the deed to be introduced in evidence, and to this ruling the defendants duly excepted. Plaintiff also introduced in evidence a written instrument executed by the heirs at law of Alberta Lang, deceased, in which they appointed and constituted I. R. Hinton the trustee of said trust, to sell the lands mentioned in the trust deed. Defendants objected to the introduction in evidence of this instrument in writing on the ground that there was no power in said mortgage or deed of trust for such appointment and sale. The court overruled the objection, and the defendants duly excepted. Plaintiff also introduced evidence showing that I. R. Hinton, the trustee named by said appointment, and heirs at law of Alberta Lang, deceased, advertised the lands in the deed of trust for sale for three successive weeks in a newspaper published in Pickens county, and on May 6, 1889, after more than 30 days' notice, sold said lands in front of the courthouse of the county of Pickens (that being the time and place of sale named in the advertisement) and that at this sale M. L. Stansel...