Louisville & N.R. Co. v. Philyaw

• Decision Date: 03 November 1891
• Citation: 10 So. 83,94 Ala. 463
• Parties: LOUISVILLE & N. R. CO. v. PHILYAW ET AL.
• Court: Alabama Supreme Court

10 So. 83

94 Ala. 463

LOUISVILLE & N. R. CO. v. PHILYAW ET AL.

Supreme Court of Alabama

November 3, 1891

Appeal from chancery court, Escambia county; JOHN A. FOSTER Chancellor.

Suit by the Louisville & Nashville Railroad Company against J. D Philyaw and M. F. Brooks for specific performance and an injunction. From a decree dissolving a preliminary injunction complainant appeals. Affirmed.

The bill sought the specific performance of a verbal contract of sale of certain described lands, and to enjoin the prosecution of a suit in the circuit court against the complainant to recover damages for the entry upon and use of the said lands, and an action on the supersedeas bond in an ejectment suit against the Louisville & Nashville Railroad Company for said land by J. D. Philyaw. The bill alleged that the said Philyaw was the owner of the land in controversy, and that in 1872 he made a verbal contract to sell the land to one George B. Milstead; that he put him in possession, but did not deliver to him any deed, the agreement being that upon the payment of the purchase money a deed should be made to said Milstead; that in 1873 said Milstead paid the purchase money, as is evidenced by a receipt set out in the bill, alleged to have been signed by J. D. Philyaw; that Milstead remained in possession of the land for seven or eight years, and then moved to Florida that in 1885, while said Milstead still claimed said land but was not in possession of the same, and had no written title thereto, he sold it by deed to one Barrett, and on the same day said Barrett conveyed it by deed to the Mobile &amp Montgomery Railroad Company, which company took possession and put the complainant, the Louisville & Nashville Railroad Company, into possession; that complainant occupied said land as tenant of the Mobile & Montgomery Railroad Company until August 13, 1888, when the said Philyaw brought an action of ejectment against the complainant for the recovery of said land; that said railroad company, in defense of said suit in ejectment, relied upon adverse possession, but said suit resulted in a judgment in favor of Philyaw, which judgment was afterwards affirmed by this court on appeal in December, 1889. Thereafter, on January 8, 1890, Philyaw brought suit against the Louisville & Nashville Railroad Company, to recover damages for the entry upon and use of said land; and on January 2, 1890, M. F. Brooks, for the use of said Philyaw, brought suit against said company and its sureties on the supersedeas bond given by said company, to secure the appeal in the ejectment case. The bill then prayed that the said J.D. Philyaw be enjoined from prosecuting his said suit to recover damages against the railroad company for said land, and also that the said M. F. Brooks be enjoined from further prosecuting the suit brought by him for use of said Philyaw, to recover damages upon the supersedeas bond; and that the said J. D. Philyaw be ordered to make a deed conveying the said lands to the Mobile & Montgomery Railroad Company. Both the respondents filed answers to the bill, and denied all the material allegations as averred therein. The said J. D. Philyaw denied that Milstead had ever paid the purchase money for the land, or that he had ever given him a receipt therefor; and stated positively that he did not sign the receipt set out in the bill. Upon the denials to the answer, the respondents moved to dissolve...