Mosely v. Mosely

• Decision Date: 02 March 1889
• Citation: 5 So. 732,86 Ala. 289
• Parties: MOSELY v. MOSELY.
• Court: Alabama Supreme Court

5 So. 732

86 Ala. 289

MOSELY v. MOSELY.

Supreme Court of Alabama

March 2, 1889

Appeal from chancery court, Morgan county; THOMAS COBBS, Chancellor.

The original bill in this case was filed on the 8th of November 1887, by Level Mosely, the appellee, against Tim Mosely, the appellant, and alleged, in substance, that in January, 1885 complainant bought a town lot in Decatur from M. C. Wade, at the agreed price of $100, paid part of the purchase money entered into possession, and commenced the erection of valuable improvements; that in February, 1887, being unable to pay the balance of the purchase money, he applied to the defendant for assistance, "and succeeded in making satisfactory arrangements with him to get the money;" that the agreement between them was, in substance, that the defendant should advance the unpaid purchase money, and should receive from said Wade a conveyance of one-half of the lot, "which was to act as a mortgage, and nothing else," and complainant was to have the right to redeem on repayment of the money so advanced; that this arrangement was carried out, the parties going together to Wade, to whom the money was paid, and who then executed a deed conveying one-half of the lot to the defendant, and another deed conveying the other half to the complainant; that the complainant afterwards tendered to the defendant the amount of money so advanced for him, with interest, and "was surprised when defendant refused to accept the money, and informed him that he intended to hold said lot under said deed." The bill alleged, also, that the lot was a part of complainant's homestead, and that he was not bound "legally or equitably, to refund said $50, borrowed from said respondent to pay the purchase money." The original bill prayed that Wade's deed to the defendant might be declared null and void, and canceled under the decree of the court; that "if complainant is, in the opinion of the court, bound to refund to respondent the money borrowed, he may be permitted to do so, and that it be made a condition of the decree of the court;" and for other and further relief. A demurrer to the original bill was interposed, assigning 16 special causes or grounds of demurrer, and the demurrer was sustained generally. The bill was then amended by making a more specific allegation of the tender, and by praying that the conveyance be declared a mortgage, and the complainant be let in to redeem. The chancellor overruled a demurrer to the bill, as amended, and, on final hearing, on pleadings and proof, rendered a decree for the complainant, holding that he was entitled to redeem, and that the conveyance was intended only as a mortgage. The overruling of the demurrer to the amended bill, and the final decree, are now assigned here as error.

E. W. Godbey and Sayre, Stringfellow & Le Grand, for appellant.

S. T. Wert and T. N. McClellan, for respondent.

CLOPTON J

In January, 1885, appellee purchased of M. C. Wade a lot of land in the town of Decatur at the price of $100. He paid about one-half of the purchase money, and, being unable to pay the balance, made an arrangement with the appellant, about January 1, 1887, by which the latter agreed to pay the unpaid purchase money, and take a deed from Wade to one-half of the lot. The appellant paid Wade the balance due on the lot, and Wade executed to him a deed absolute in form. At this point the controversy between the parties arises. Appellee contends that the arrangement was that appellant should pay the unpaid purchase money, and take a deed as security for the repayment of the same; that the deed made by Wade was to operate as a mortgage, and appellant was to convey the property on being repaid. This appellant denies, and asserts that he purchased one-half of the lot absolutely, and that the deed was intended to be indefeasible. Appellee files the bill which prays that the deed be declared a mortgage, and that he be let in to redeem.

The first question is, what was the nature of the relation between complainant and defendant? The ruling in Micou v. Ashurst, 55 Ala. 607 answers this question. In that case, it was held that where a purchaser of lands, having paid part of the purchase money, and being unable to make the deferred payments, borrows for that purpose money from a third person, to whom he procures the legal title to be conveyed by his vendor, giving his notes for the money borrowed, and taking from him a bond conditioned to make titles on their payment, the relation between the parties is that of vendor and vendee. The deed made by Wade to defendant was intended to be absolute and indefeasible, not a...