McGuire v. Andre
| Decision Date | 26 March 1953 |
| Docket Number | 8 Div. 668 |
| Citation | 65 So.2d 185,259 Ala. 109 |
| Parties | McGUIRE et al. v. ANDRE. |
| Court | Alabama Supreme Court |
Bradshaw, Barnett & Haltom, Florence, for appellants.
Mitchell & Poellnitz, Florence, and McAfee Lee, Knoxville, Tenn., for appellee. Exhibit G, referred to in the opinion, is as follows:
Exhibit G
'State of Alabama
'Know All Men By These Presents that we, C. McGuire and wife, Lisa Lee McGuire, of Maysville, Kentucky, hereinafter referred to as parties of the first part, for and in consideration of $10.00, cash in hand paid by Southern Sash Sales & Supply Company, Inc., a corporation organized and existing under the laws of the State of Alabama, hereinafter referred to as a party of the second part, the receipt whereof is hereby acknowledged, do hereby for ourselves, our heirs, executors and administrators, contract and agree to sell and convey to party of the second part, its successors, or assigns, for the consideration hereinafter mentioned, the following described property, situate, lying and being in Lauderdale County, Alabama, towit:
(Description)
'The consideration to be paid by the party of the second part, its successors or assigns, shall be the sum of $13,000.00; said sum of $13,000.00 to be paid $6,000.00 cash upon the execution and delivery of a good and sufficient warranty deed by parties of the first part conveying the above described property to party of the second part, and the balance of $7000.00 shall be paid in three annual installments of $2,333.33 each, the first annual installment being due one year from date of the execution and delivery of such deed from parties of the first part to party of the second part, and the two remaining annual installments shall be due and payable in each successive year thereafter; the said sum of $7000.00 to bear 4 1/2% interest per annum, interest on the full sum remaining unpaid being due and payable annually, and said sum of $7,000.00 shall be secured by a good and sufficient first mortgage given by party of the second part to parties of the first part at the time of the delivery of such warranty deed. The said mortgage for $7,000.00 and the notes evidencing said indebtedness of $7,000.00 shall contain a provision whereby party of the second part may pay any part or all of the principal at any time it may elect and interest shall be due and payable on the portion of the principal paid only to date of payment. Parties of the first part further agree that the mortgage shall contain a provision whereby parties of the first part will release from the operation of this mortgage any lot upon the payment to parties of the first part by party of the second part the sum of $50.00.
'Party of the second part has this day delivered to parties of the first part its check in the sum of $1,000.00 as earnest money and said sum of $1,000.00 shall be applied against the cash down payment of $6,000.00 in the event this transaction is closed.
'Parties of the first part further contract and agree to immediately have prepared an abstract of title covering the above described property and to deliver said abstract to an attorney of the choosing of party of the second part for examination and if the title to the above described property is found to be good and sufficient so that parties of the first part may convey to party of the second part fee simple to the above described property, excepting as to the restrictions hereinabove mentioned, parties of the first part contract and agree to forthwith, and within ten days after having been notified that the title is acceptable to execute and deliver a good and sufficient warranty deed to the above described property to party of the second part, its successors or assigns, provided party of the second part simultaneously delivers a good and sufficient first mortgage covering the above described property to parties of the first part, in accordance with the terms hereinabove set out. In the event the title to the above described property is found not to be acceptable to the attorney chosen by party of the second part then parties of the first part contract and agree to promptly repay to party of the second part the $1,000.00 earnest money this day delivered to parties of the first part. If an examination of the abstract reveals that parties of the first part can convey fee simple title and party of the second part fails to purchase, then in that event party of the second part shall forfeit the $1,000.00 earnest money and the $1,000.00 earnest money shall be retained by parties of the first part.
'In Witness Whereof, the parties hereto have hereunto set their hands and seals this the 16th day of December, 1949.
'Seal
'/s/ C. McGuire (L.S.)
/s/ Lisa Lee McGuire (L.S.)
State of Kentucky
'I, Viola Wood, a Notary Public in and for said County in said State, hereby certify that C. McGuire and wife, Lisa Lee McGuire, whose names are signed to the foregoing option, and who are known to me, acknowledged before me on this day that, being informed of the contents of the option, they executed the same voluntarily on the day the same bears date.
'Given under my hand and official seal of office this the 16th day of December, 1949.
'Seal
My commission expires
Viola Wood
Notary Public
Viola Wood
Notary Public Mason County, Kentucky
My commission expires Jan. 17, 1950.
'State of Alabama
'I, Viola Wood, a Notary Public in and for said County in said State, hereby certify that Elton H. Darby, whose name as President of Southern Sash Sales & Supply Company, Inc., a corporation, is signed to the foregoing option and who is known to me, acknowledged before me on this day, that, being informed of the contents of this option he, as such officer and with full authority, executed the same voluntarily for and as the act of said corporation.
'In Witness Whereof I have hereunto set my hand and official seal of office this the 16th day of Dec. 1949.
'Seal
'Viola Wood
Notary Public
My Commission expires ________
Viola Wood
'Notary Public, Mason County, Kentucky
My Commission Expires Jan. 17, 1950.'
The pivotal question in this case is whether a written contract which is designated in the record as Exhibit G is a contract for the sale and purchase of real estate or is an option for the purchase of real estate. As will appear, if the contract is one for the sale and purchase of real estate, then the principle of equitable conversion will consider the real estate as personal property, when it is sold, subject to the laws of descent and distribution of the State of Kentucky. If on the other hand the contract is an option, then the lands embraced in the contract remain real property under the laws of the State of Alabama and subject to the laws of descent and distribution of real property in the State of Alabama. The instrument which we have referred to as Exhibit G will appear in the report of the case.
On December 16, 1949, C. McGuire died intestate in Maysville, Kentucky. He was an inhabitant and resident of that city and state. He left surviving him his widow Lisa Lee McGuire and a sister Cora Andre, who is legally incompetent. Charles Andre, Jr., appellee, is her legally appointed guardian. The decedent had no children or their descendants, no father and mother living at the time of his death and no brothers and sisters, except Cora Andre, and no descendants of any brothers and sisters.
On and prior to December 16, 1949, C. McGuire owned in fee simple certain real estate situated in Lauderdale County, Alabama, in a subdivision known as Edgemont No. Two. This property will be referred to as the Edgemont property. At the time of his execution of the instrument to which we will refer, he had a good and merchantable title to the property.
On the morning of December 16, 1949, R. W. Drane, a Real Estate Agent from Florrence, Alabama, presented to C. McGuire a certain written instrument, which we have referred to and identified as Exhibit G, prepared by an attorney of Tuscumbia, Alabama, for Southern Sash Sales & Supply Company, Inc., an Alabama corporation. This instrument had been executed a day previously in Florence, Alabama, by Southern Sash Sales and Supply Co., Inc., through its president and attested by its secretary. C. McGuire and his wife signed and acknowledged the written instrument on the morning of December 16, 1949, and delivered the same to R. W. Drane immediately thereafter in Maysville, Kentucky, for delivery to the Southern Sash Sales & Supply Co., Inc. At the time of the delivery of the aforesaid written instrument to R. W. Drane, as recited in the instrument, C. McGuire received from Drane on behalf of Southern Sash Sales & Supply Co., Inc., the sum of $10 in cash and a check for $1,000 drawn by Southern Sash Sales & Supply Co., Inc., on the First National Bank of Tuscumbia, Alabama, dated December 14, 1949, payable to the order of D. C. McGuire with the notation on the face thereof, 'earnest payment of property and part of purchase price of same.' C. McGuire endorsed and deposited the check in the State National Bank of Maysville, Kentucky, on December 16, 1949, and the check was paid through normal banking channels on December 22, 1949. Subsequent to December 16, 1949, an abstract of title to the Edgemont property was prepared and furnished to the attorney of Southern Sash Sales & Supply Co., who approved the title.
Upon the death of C. McGuire, which occurred unexpectedly on the afternoon of December 16, 1949, ancillary letters of administration on his estate were granted to J. L. Jaynes by the Probate Court of Lauderdale County, Alabama, on March 16, 1950, and on April 6, 1950, Southern Sash Sales and Supply Company paid to Jaynes, as ancillary administrator, the sum of $5,000 in cash and delivered to him its...
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