Metcalf v. Griffith
| Decision Date | 01 May 1919 |
| Docket Number | 4 Div. 814 |
| Citation | 81 So. 571,202 Ala. 629 |
| Parties | METCALF v. GRIFFITH et ux. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Bill by P.M. Metcalf against G.D. Griffith and wife, in which G.D Griffith files cross-bill against his wife and complainant. From a decree overruling a demurrer to cross-bill complainant appeals. Affirmed.
W.O Mulkey, of Geneva, for appellant.
C.D. Carmichael, of Geneva, for appellees.
This appeal is from a decree overruling appellant's demurrer to the amended cross-bill of G.D. Griffith. A succinct statement of the substance of the case made by the amended original bill (filed October 1, 1917) and the amended cross-bill will foreshadow the correct conclusion.
The bill, original and as amended, seeks the foreclosure of a mortgage for $4,194.10 and for future advances, executed by G.D. Griffith and wife, Emma, to appellant on December 18, 1913; the debt maturing on October 1, 1914. The mortgage covered 120 acres of land described therein. In the amended bill it is affirmatively averred that Emma Griffith was not liable for the mortgage, debt, nor did she have any interest in the land described therein, and thereupon the averment is made that she was not a necessary party to the bill. The amended cross-bill, to which G.D. Griffith was the sole party complainant constituted the appellant and Emma Griffith, complainant's wife, the cross-respondents. The facts, necessary to be now stated, set forth therein, disclosing its theory and pointing the measures of affirmative relief desired, are these: That the mortgage exhibited with the bill has been paid and satisfied; assuming mistake in this avowal, that the net balance of the mortgage debt became merged into a contract (of date December 30, 1914) that took this form: A deed by Griffith and wife to appellant, conveying what was intended to be the land described in the bill, upon a recited consideration of $3,500 (the then supposed amount of the balance of the mortgage debt), bearing this reservation of right to a reconveyance of the land:
"It is understood and agreed by both parties that the grantees, the said G.D. Griffith and wife, shall have the right and privilege to have the land herein described and conveyed reconveyed to them at any time they pay the amount of the consideration of this deed, to wit, $3,500, to the said P.M. Metcalf on or before January 1, 1918, and the said P.M. Metcalf hereby agrees to reconvey the said land as aforesaid upon receipt of the said purchase price, to wit, $3,500."
On March 7, 1916, another conveyance, corrective of errors in the first, was made by Griffith and wife to appellant, upon a recited consideration of "one dollar," which instrument bore this reservation:
On November 28, 1910, prior to the execution of the mortgage to appellant, Griffith and wife executed a mortgage on this land, and other property, to J.J. Hughes, to secure a debt of $1,887. This mortgage was marked paid and satisfied by Hughes on December 22, 1913, four days after the mortgage to appellant was executed by the Griffiths. It is alleged in the cross-bill that the requisite proportion of the money borrowed from appellant by G.D. Griffith was applied to the payment and satisfaction of the Hughes mortgage debt.
It is manifest from the averments of the amended cross-bill that if the mortgage debt to appellant was not paid in full (as the cross-bill avers in the alternative), the execution of the instruments, of dates December 30, 1914, and March 7, 1916, were acts, and consequently created obligations immediately connected...
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