Lucas v. Skinner

• Decision Date: 04 November 1915
• Docket Number: 604
• Citation: Lucas v. Skinner, 194 Ala. 492, 70 So. 88 (Ala. 1915)
• Parties: LUCAS v. SKINNER et al.
• Court: Alabama Supreme Court

70 So. 88

194 Ala. 492

LUCAS v. SKINNER et al.

No. 604

Supreme Court of Alabama

November 4, 1915

Appeal from Law and Equity Court, Marengo County; Edward J. Gilder Judge.

Action by Decimas Lucas, as administratrix, etc., against Millie Boykin Skinner and others. Judgment for defendants on demurrers to amended bill, and plaintiff appeals. Affirmed.

C.B Powell, of Birmingham, I.I. Canterbury, of Linden, and Elmore & Herbert, of Demopolis, for appellant.

McDaniel & Whitfield, of Demopolis, and William Cunninghame, of Linden, for appellees.

McCLELLAN J.

The appeal is from a decree sustaining demurrers to the amended bill, which sought an accounting, and thereupon redemption from an unforeclosed mortgage on real estate. The conclusion prevailing below was rested upon laches on the part of those who would now invoke to their advantage the powers of a court of equity. The court found apt authority for its judgment in Snodgrass v. Snodgrass, 185 Ala. 155, 64 South 594. The decree was well rendered, as will appear from a condensed recital of the presently material allegations of the amended bill.

Smith Lucas owned the land described in the bill. In December 1886, he executed a mortgage thereon to Taylor and Johnson. Subsequently, but prior to the year 1896, the mortgagor induced W.A. Skinner to buy the mortgage from the mortgagees. The mortgage was transferred and assigned for value to Skinner. It is averred that, apparently contemporaneously with the assignment of the mortgage to Skinner, Skinner promised or agreed with the mortgagor to not foreclose the mortgage (though the mortgage debt was long since over due) "but would take possession of the lands described in said mortgage, *** and would rent the same out, collect the rents, and, after paying the taxes and all lawful charges against the lands, would apply the residue of said rent to the payment of said mortgage debt, which at the time oratrix avers was about the sum of $300;" that the possession of the land contemplated by the agreement was surrendered to Skinner in the year 1896; that Skinner's possession of the land during his life was in recognition of the relation the asserted agreement established, and was never hostile or adverse, but in recognition of Lucas' right to redeem the land; and that Skinner "never made any other claim except the right to collect the rents and profits and apply the same to the satisfaction of said mortgage indebtedness." It alleged that Skinner died in the year 1903. The heirs at law of Skinner remained in possession of land after Skinner's death. Lucas, the mortgagor, did in April, 1911. Letters of administration on the estate of Skinner were granted and issued in the year 1908; but no proceedings were taken in virtue of that authority, the heirs at law of Skinner being of full age, and the estate being...