Appeal
from Circuit Court, Morgan County; W. W. Callahan, Judge.
Bill in
equity by Cora Bradshaw and William Bradshaw against Treeby
Michie Shaw, Eunice Michie Dean, Winston T. Michie, Elizabeth
M. Michie, Mollie Sykes Michie, and H. C. Michie
individually and as trustee for Mollie Sykes Michie. From a
decree overruling a demurrer to the bill, respondents appeal.
Affirmed.
Sustaining
demurrer to bill as a whole is error, if any one of
bill's aspects presents case for equitable relief.
Owners
of a large body of land, known as the Garth lands, through
trustees with full authority, sold the lands with
stipulations looking to a resale in parcels by the vendees
and a release of such lands from the purchase-money mortgage
on specified conditions.
The
purchase-money mortgage was foreclosed under power of sale
and the property purchased by the mortgagees, who thereupon
brought suit in ejectment against the heirs at law of a
purchaser from the vendees to recover the parcel or parcels
of land in suit.
On
statutory petition of the defendants in ejectment setting up
an alleged equitable defense, the cause was transferred to
the equity docket (see Code 1923, § 6490).
Thereupon
the present bill was filed for cancellation of the mortgage
and foreclosure deed as to this land.
The
present appeal is from a decree overruling demurrers to the
bill.
We here
set forth in extenso the pertinent averments of the bill:
"Par.
7. On July 17, 1920, H. Clay Michie, as attorney-in-fact
for the said children of Eunice Sykes Michie, and acting
under the powers-of-attorney for said children, and with
full authority thereunder, and Winston F. Garth, as trustee
of Mollie Sykes Michie, and with full authority under his
said trusteeship, (hereinafter called the vendors)
contracted in writing to sell to Lamar Penney, E. D.
Whitman and Otto Moebes (hereinafter called the vendees),
the said Garth lands. The said contract was a culmination
of former negotiations whereby the vendees contracted to
buy the said lands from the vendors, and the vendees prior
to that time had had all or a part of said lands platted.
The vendors and the vendees during the negotiations leading
up to the execution of said contract and at the time of the
platting of the said lands, had in view a re-sale of the
said lands by the vendees to their purchasers. This
contract was in writing, and it contained the following
provision fixing and determining the rights of the
purchasers who contracted to purchase from the vendees on
July 17, 1920:
"'Fifth:
It is understood and agreed that any sale made by the
parties of the second part, of any of said lands, for
cash, the same is to be received by them and paid over to
the parties of the first part, whereupon said parties of
the first part agree to release from the mortgages to be
given by the parties of the second part to the parties of
the first part, the land so sold for cash, and on any
sales made by the parties (of) the second part of said
lands for cash and part on time, if said sales are at any
aggregate price of not less than fifty dollars per acre,
as the same
shall be paid out by the vendees of the parties of the second
part, and the proceeds thereof paid to the parties of the
first part, the parties of the first part are to release to
said purchasers respectively the lands so sold to them by the
parties of the second part to the parties of the first
part.'
"Par
8. On to-wit: August 2, 1920, the vendors and vendees entered
into another contract which contained provisions fixing and
determining the rights of purchasers of the vendees who
purchased any part of the said lands subsequent to the 17th
day of July, 1920. The said provisions are as follows:
"'Third:
It is understood and agreed by the vendors and the vendees
that any sales made by the vendees subsequent to the 17th
day of July 1920, shall be governed by the following
provisions, which are for the protection of the vendors and
the vendees and the purchaser or purchasers at any such
sale.
"'(a)
The vendors agree to release from the operation of any
mortgage executed to them by the vendees, any land sold
subsequently to July 17th, 1920, provided that they are
paid for said land at an aggregate price of $50.00 per
acre. They further agree that vendee shall have the right
to sell any part of said land remaining unsold on terms,
provided the vendees pay to the vendors any initial payment
made on the lands so sold, on terms and provided, further
that they endorse to the vendees the notes evidencing the
deferred payments, executed to the vendees by the purchaser
or purchasers, and any mortgages or other form of security
taken to secure the balance of the purchase money.
"'They
further agree that when any purchaser or purchasers who buy
upon terms, pay to the vendees an amount equal to fifty
dollars per acre of the aggregate acreage bought by said
purchaser or purchasers, on term, that they will release to
such purchaser or purchasers, the land so purchased, from
the operation of the mortgage to be executed to them by the
vendees, but not for any balance due the vendees by the
purchasers, provided that the vendors are paid interest on
such deferred payments from the date of such sale or sales
to the time that they are paid said aggregate sum of fifty
dollars per acre for the land so purchased, provided,
always, that the vendors are paid said aggregate sum of
fifty dollars per acre, if said sales are for cash, and
said sum of fifty dollars per acre and the accumulated
interest thereon when said sales are on terms on or before
the maturity of the last note which is to be executed by
the vendees to the vendors, evidencing the last payment on
the purchase price of the lands hereinabove described.'
"This
contract is of record in the office of the Judge of Probate
of Morgan County, Alabama, in Deed Record 272 and at page
324. H. Clay Michie, as attorney-in-fact for the said
children of Eunice Sykes Michie, was authorized under his
said power-of-attorney to make said contract for said
children, and Winston F. Garth as trustee for Mollie Sykes
Michie was authorized by his said trusteeship to make such
contract in her behalf.
"Par.
9. On the 20th day of July, 1920, the decedent contracted
with the vendees in writing to purchase the land involved
in this suit, and the said contract contained the following
provisions, in which said land was described, and which
fixed the terms and conditions of said sale:
"'State
of Alabama, Morgan County.
"'This
contract and agreement, made and entered into on this,
the 20th day of July 1920, by and between, Otto Moebes,
Lamar Penney and E. D. Whitman, as Parties of the First
Part, and hereinafter so designated, and Hugh B.
Bradshaw, Party of the Second Part, and hereinafter so
designated, by which it is mutually contracted and agreed
as follows: (Here follows stipulations showing sale and
purchase of the lands in suit, 13.303 acres, at a gross
price of $1529.85 on terms shown in paragraph 3 below.)
"'3.
It is agreed between the Parties hereto that the said
Party of the Second Part has this day, in hand paid to
the said Parties of the First Part, the sum of $152.98
Dollars, as part payment of the consideration
hereinbefore named, and has this day executed his 4
promissory notes numbered from one to 4 inclusive to said
Parties of the First Part for the balance to-wit
$1376.87. Note No. 1, for 229.47 Dollars, and due 1st day
of 1921. Note No. 2, for 382.46 Dollars, and due 1st day
of 1922, Note No. 3, for 382.46 Dollars, and due 1st day
of 1923, Note No. 4, 382.46 Dollars, and due 1st day of
1924, said notes to draw interest at the rate of 8 per
cent per annum from date and said interest being payable
annually.'
"The
decedent on or about said day and date paid to the
vendees the sum of $152.98, and executed his notes for
the deferred payments under the terms of said contract.
"Par.
10. On or about January 1, 1921, the vendors executed to
the vendees a warranty deed to all of the said Garth Lands,
and the vendees in turn executed to the vendors a mortgage
on said lands, which contained the following provisions:
"'The
mortgagors will assess and pay the taxes for the year 1921.
It is agreed that certain purchasers purchased a part of
the land herein described between the 17th day of July,
1920, and the 1st day of January, 1921, and paid thereon,
ten per cent of the purchase price, and agreed to pay the
balance in four installments as follows: Fifteen per cent
on January 1, 1921, Twenty-five per cent on January 1,
1922, Twenty-five per cent on January 1, 1923, and
Twenty-five per cent
on January 1, 1924, with interest on each deferred payment
from August 15, 1920, said interest payable on the 1st of
January of each year thereafter.
"'It
is further agreed by the mortgagees that the fifteen per cent
maturing on January 1, 1921, may be extended to January 1,
1922, upon the payment of all interest due upon all deferred
payments, under the contract of purchase.
"'The
mortgagees further agree that any purchaser who has paid ten
per cent of his purchase price on or before January 1, 1921
and whose deferred payment of fifteen per cent due and
payable on January 1, 1921, is extended until January 1,
1922, may at any time, intervening between January 1, 1921,
and January 1, 1922, pay said deferred payment of fifteen per
cent, by paying the principal thereof, and the interest to
the date of such payment; and in the event such payment is
made before January 1, 1922, the mortgagors shall have the
right to execute to such purchaser a deed conveying the
property purchased, and in that event they shall take a
mortgage...
