Mitchell v. Cobb

• Citation: 118 So.2d 918,270 Ala. 346
• Decision Date: 17 March 1960
• Docket Number: 1 Div. 833
• Parties: Mayer MITCHELL et al. v. T. W. COBB et al.
• Court: Supreme Court of Alabama

Page 918

118 So.2d 918

270 Ala. 346

Mayer MITCHELL et al. v. T. W. COBB et al.

1 Div. 833.

Supreme Court of Alabama.

March 17, 1960.

D. R. Coley, Jr., Mobile, for appellants.

Keener T. Blackmarr, Mobile, and Tipler & Fuller, Andalusia, for appellees.

STAKELY, Justice.

This cause comes before this court on appeal from a decree entered by the equity court sustaining the demurrers 'to that aspect of the bill of complaint as last amended and set forth in paragraph 3-A * * *.' The effect of the court's decree leaves before the court for decision on the merits the aspect of the complainants' claim for relief as contained in the original complaint. The original bill of complaint was filed by Joseph Mitchell and upon his death revived in the name of Mayer Mitchell and others, as executors of the estate of Joseph Mitchell, deceased. The purpose of the bill is to establish an alleged lost deed from Steber and wife to T. W. Cobb and if such deed is established to foreclose a mortgage from T. W. Cobb to Joseph Mitchell.

This case was before this court in Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391. It was there held that since Joseph Mitchell was not a party to the cause styled in this court Turner v. Steber, 259 Ala. 509, 66 So.2d 781, Joseph Mitchell was not bound by the decision in Turner v. Steber, supra.

We think it well to set forth in chronological order the principal events constituting the background of this lengthy litigation. George R. Turner instituted a suit in the Circuit Court of Mobile County, in Equity, against Anna Knovel Steber, as executrix of the last will and testament of William R. Steber, deceased, and others, including William G. Austin, Jr., as trustee for his children, William G. Austin and Ann Austin, who are the principal creditors of the estate of William R. Steber, deceased. In this case the complainant, George R. Turner, sought to establish an allegedly lost deed from William R. Steber to T. W. Cobb. This is the case which is referred to above as Turner v. Steber, 259 Ala. 509, 66 So.2d 781. In the last mentioned case it was alleged that George W. Turner held a deed from William R. Steber to T. W. Cobb which had never been recorded and that this deed from Steber to Cobb had been lost or destroyed. It should be mentioned here that this is the same deed that the complainants are seeking to prove in the first aspect of their bill of complaint, which is still before the court below.

In Turner v. Steber, 259 Ala. 509, 66 So.2d 781, this court held that there was never any intent on the part of Steber to execute and deliver a deed which would convey title to the property involved and furthermore that if there were such a deed from Steber to Cobb it was an attempt to devise a method whereby a taxi business could be operated under wartime restrictions and that there was no intent to convey the title to the property. It was further held that since the title to the property was vested in William R. Steber and did not pass to T. W. Cobb, the property constituted an asset of the estate of William R. Steber, deceased, and inured to the benefit of his creditors of which William G. Austin, Jr., as trustee for the children, is the principal creditor.

In the present case, which we have referred to supra as Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391, the allegedly lost deed from William R. Steber to T. W. Cobb is again sought to be established and the decree in Turner v. Steber, supra, was held as not binding on Joseph Mitchell because he was not a party to that litigation.

In the case now before us the bill of complaint has been amended by adding thereto an additional aspect contained in paragraph 3-A of the complaint. This is the aspect to which the court sustained the demurrers and this is the decree from which the present appeal has come to this court.

The allegations of paragraph 3-A of the bill of complaint as last amended show in substance that prior to the date William R. Steber and his wife allegedly executed a deed to T. W. Cobb, William R. Steber in September 1943 had given to Joseph Mitchell a mortgage on the property involved in this cause and other property to secure an indebtedness of $40,000 and in addition thereto any other debts or obligations for advances made thereafter by Joseph Mitchell to W. R. Steber and that in addition to the primary obligation of $40,000, Steber was indebted to Joseph Mitchell in the sum of to wit $25,000 for moneys paid by Joseph Mitchell in satisfaction of certain notes owed by Steber and endorsed by Joseph Mitchell, all of which was secured by the mortgage, a copy of which is attached to the bill as last amended, marked Exhibit 3 and made a part thereof. It is further averred that Joseph Mitchell having paid certain notes, leavig a balance of $40,000 on the mortgage indebtedness, delivered these notes to Steber and cancelled the indebtedness incurred by him in the payment of said notes in consideration for the execution of the deed by William R. Steber and wife, conveying the lands described in the bill of complaint to T. W. Cobb, as evidenced by a receipt dated July 14, 1944, signed by William R. Steber, a copy of which is attached to the bill of complaint as last amended, marked Exhibit A-1 and made a part thereof. It is further alleged that Steber accepted the cancellation and satisfaction of said indebtedness as payment of the consideration by the conveyance of said land with other property, the consideration for said land being fixed at $8,000. It is further alleged that as a part of the transaction and as a further consideration for the execution of the conveyance by Steber to T. W. Cobb, as aforesaid, Joseph Mitchell and American National Bank & Trust Co., as transferee of said mortgage, released from the lien of the mortgage to him executed by Steber, the automobiles and equipment used in connection with the Star Taxi business and quitclaimed and conveyed to George R. Turner the real property on which the Star Taxi Company did business, all to the end that the sale of certain property to T. W. Cobb might be consummated by the said William R. Steber. A copy of the release is attached as complainants' Exhibit A-2 to the bill as amended and made a part thereof.

It is further alleged that the indebtedness of Steber to Joseph Mitchell cancelled by Joseph Mitchell as hereinabove alleged, has never been paid or satisfied except as hereinabove set forth and that if it could be that Steber never executed and delivered to T. W. Cobb the deed conveying said land, then no consideration passed to complainant for the cancellation of the indebtedness and the release of the property from the lien of the mortgage and that the mortgage from Steber to Joseph Mitchell is in default and subject to foreclosure.

The aspect of the amended bill presented in paragraph 3-A seeks to have the court decree that the release executed by Joseph Mitchell from the mortgage from William R. Steber was without consideration or that the consideration therefor has failed and seeks to get the court to order and decree that notwithstanding the cancellation and release from such mortgage, the said mortgage still constitutes a lien on the property involved.

It affirmatively appears from the bill as amended that a satisfaction was entered upon the face of the mortgage as shown in Exhibit A-3, which is attached to the amended bill and made a part thereof. The satisfaction is signed Joseph Mitchell and is as follows: 'The...