Lenoir v. Burns

• Decision Date: 12 March 1931
• Docket Number: 4 Div. 521.
• Citation: 134 So. 485,223 Ala. 101
• Parties: LENOIR ET AL. v. BURNS.
• Court: Alabama Supreme Court

134 So. 485

223 Ala. 101

LENOIR ET AL. v. BURNS.

4 Div. 521.

Supreme Court of Alabama

March 12, 1931

Rehearing Denied May 21, 1931.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Bill by Effie Burns against Annie Lenoir and others to remove clouds from title to lands, with a cross-bill by respondents. From a decree for complainant, respondents appeal.

Affirmed.

See also 220 Ala. 422, 125 So. 661.

C. B Fuller, of Opp, for appellants.

A. R Powell, of Andalusia, for appellee.

THOMAS J.

The original bill by Effie Burns sought cancellation of a deed and mortgage as a cloud upon her title to real property; the first deed from Cannon to W. C. Lenoir ordered canceled as a cloud on the title of complainant, and the mortgage by complainant, Effie Burns, and husband of date of June 28, 1920, to said Lenoir, was found to have been paid in full. There was answer and cross-bill alleging title in Lenoir, etc. The decree was that of concellation of the mortgage and indorsement thereof on the margin of the record in the office of the judge of probate; hence the appeal.

The record is voluminous and has been carefully considered. There was an agreement between W. C. Lenoir, under whom appellants hold title by descent or devise, and appellee, that the former would furnish money with which to buy the land for appellee; that title be made to her and the money loaned be secured by a mortgage on said lands. The court properly held that a trust resulted, or was raised when deed was made to Lenoir (contrary to the agreement of said parties), rather than to appellee. Burns v. Lenoir, 220 Ala. 422, 125 So. 661; Moss v. Winston, 218 Ala. 364, 118 So. 739, and authorities; Hodges v. Verner, 100 Ala. 612, 13 So. 679; Bates v. Kelly, 80 Ala. 142.

The letter or writing shown by the evidence from Lenoir to Burns was sufficient to meet the requirements of the statute (if such writing was required), as no particular formality was required. Code, § 6917; Wiggs v. Winn, 127 Ala. 621, 29 So. 96; Hodge v. Joy, 207 Ala. 198, 92 So. 171. It is undisputed that Lenoir, appellants' predecessor in title, accepted a mortgage from Burns on the land for the amount of the purchase price, and it was held by the personal representative of said Lenoir, deceased, who sought to foreclose and was prevented by injunction. This action by Lenoir in accepting the mortgage prevented his successors from denying the mortgage, title, or interest of Mrs. Burns in the land. 21 C.J. 1072; Ramsey v. Sibert, 192 Ala. 176, 68 So. 349. The title to the mortgage taken by Lenoir passed to the personal representative subject to estoppel raised by the mortgagee that affected his personal representative's right to collect, etc. Code, §§ 9025, 9026; Bright v. Wynn, 210 Ala. 194, 97 So. 689, if not enjoined.

The insistence of appellant that appellee did not acquire title or interest in the land that was paramount to appellant is not supported by the evidence. The $4,000 mortgage given by her to Mr. Lenoir (after the mortgagor was put into possession by the latter) and held by him and his personal representative after his death, and payments made thereon support her insistence. The mortgage and debt secured was a sufficient consideration for the second deed to the mortgagor, and the evidence shows that the mortgagor was put into possession by Lenoir. This satisfied the demands of the statute of frauds (Code 1923, § 8034, subsec. 5). That is, the first deed from Cannon to Lenoir, not having been executed and delivered per contract, was torn up by Lenoir and the latter procured a new deed, made by Cannon to the mortgagor pursuant to the agreement of the parties, and thereafter Cannon and Lenoir put appellee in possession, and the latter accepted her mortgage for the...