Nance v. Gray

• Decision Date: 09 February 1905
• Citation: 143 Ala. 234,38 So. 916
• Parties: NANCE ET AL. v. GRAY.
• Court: Alabama Supreme Court

38 So. 916

143 Ala. 234

NANCE ET AL. v. GRAY.

Supreme Court of Alabama

February 9, 1905

Appeal from Chancery Court, Calhoun County.

Suit by W. C. Gray against James A. Nance and others. From a decree granting the relief prayed for, certain defendants appeal. Affirmed.

In 1883 W. P. Cooper sold certain land to James A. Nance, and executed a bond for title to the same, in the sum of $2,000 and placed the said Nance in possession of the land. On December 11, 1893, on a settlement had between W. P. Cooper and Nance, it was ascertained that the balance of purchase money then due by Nance was $413.61, since which time no payments have been made. W. P. Cooper died, and W. H. Cooper became executor of his will. Subsequently, on October 14 1897, James A. Nance executed to W. H. Cooper, as executor of W. P. Cooper, a note in the sum of $555.66, payable one day after date, which note contains the recital that it is for the balance of the purchase money of the lands therein described. The description in said note corresponded with the description of the lands in the bond for title, except that where in the bond a certain piece of land is described as the "South west 1/4 of section 30," in the note it appears as the "South 1/4 of section 30." At the time of the making of this note, said W. H. Cooper, as executor of W. P. Cooper, deceased, executed to said Nance a conveyance of the lands described in the bond for title. Under the terms of the will of W. P. Cooper, full power was conferred upon W. H. Cooper to sell and dispose of, at his discretion, all the property of decedent, real and personal. At the time of the execution of the deed by him to Nance letters testamentary had not issued to W. H. Cooper, but such letters testamentary were subsequently issued to said W. H. Cooper on December 7, 1898--more than a year after the execution of the deed to Nance, and of the note by Nance. Some time during the year 1899, while still acting as executor of W. P. Cooper, the said W. H. Cooper, as executor, transferred said Nance's note to W. C. Gray, the appellee, for a recited consideration of $500. On October 30, 1899, the letters testamentary which had been issued to said W. H. Cooper were revoked; and, on a final settlement had in the probate court of Calhoun county, said W. H. Cooper charged himself with the full amount of the note executed to him by said Nance. On February 1, 1902, one Frank Martin was appointed by the probate court of Calhoun county as administrator cum testamento annexo of the estate of W. P. Cooper, deceased. On February 25, 1902, said James A. Nance executed a deed to said Frank Martin, as administrator, by which he purported to convey the lands embraced in the deed from W. H. Cooper, as executor, to said Nance. The deed recites it to be "for a valuable consideration." On August 27, 1902, W. C. Gray, the appellee, filed an original bill in the chancery court of Calhoun county, reciting the substance of the facts above stated, which, after sundry amendments, made parties defendant the said James A. Nance, Frank Martin, individually and as administrator of estate of W. P. Cooper, deceased, and the heirs at law of W. P. Cooper, deceased, among whom was the said W. H. Cooper. The relief prayed that the deed from Nance to Martin be set aside or declared subordinate to the vendor's lien held by complainant, and that said vendor's lien be enforced by a sale of the lands for the payment of the amount of unpaid purchase money evidenced by the promissory note transferred to complainant by W. H. Cooper as executor of W. P. Cooper, deceased. The heirs of W. P. Cooper admitted the allegations of the bill. The defenses interposed by James A. Nance and Frank Martin sufficiently appear in the opinion.

Lapsley & Martin and Knox, Acker & Blackmon, for appellants.

Matthews & Whiteside, for appellee.

SIMPSON J.

As the arguments of counsel do not follow the assignments of error, in order, we will take up the points contended for in the order presented:

The first contention of appellants is that the allegata and probata do not correspond, because the copy of the note of October 14, 1897, as set out in the original bill, in the first call in the description of the land was the "South 1/4" of section 30, and the original note, in the record, has the "South west 1/4" of section 30; the word "west" being written with different ink, apparently, and evidently written after the original writing of the note, as it runs up above the line, and is written across the bracket inclosing the "1/4." The deposition of W. H. Cooper fully identifies this note as the one which was given for the payment of balance due on the land, and it would only have been necessary to amend the pleading slightly to make it conform exactly to the exhibit; and whether the word "west" was in it, or not, at the time of its delivery, would not have changed the legal effect of the transaction. The variance is immaterial. Lazier v. Wescott, 26 N.Y. 146, 82 Am. Dec. 405; Deakin v. Underwood, 37 Minn. 98, 33 N.W. 318, 5 Am. St. Rep. 827.

Under the original transaction in this case, the vendor had an equitable mortgage on the land, and the settlement and giving of the deed and making of the note changed the equitable mortgage into a vendor's lien; and in either event the gravamen of complainant's claim was that the land had been sold, and the purchase money not all paid, which could be sustained by proper proof either with or without the note. Hester v. Hunnicutt, 104 Ala. 282, 16 So. 162; Culver v. Caldwell (Ala.) 34 So. 16. As to the effect of the alteration of the note by writing the word "west" (admitting that it was an alteration after delivery), we hold that it is not a material alteration. The obligation of the instrument would have been just as strong without any description of the land, which was merely put in the note to identify it as the note which was given for the balance due on the land. In the case of Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440, 53 Am. St. Rep. 80, this court held that the alteration of the deed itself, even in a material point, did not divest the title to the land, and that the altered deed could be adduced as a memorial of the conveyance. In the case now under consideration the note was not the basis of the claim for recovery, the suit being to enforce the lien which the law gives whether there be any note at all or not.

The next insistence of appellants is that the notes for which the lien is claimed were made up of items of amounts due for personal property intermixed with the amount due on the land so that it is impossible to separate them, and that thereby the entire lien was lost. The only proof of any intermixture relates to the original transaction between W. P. Cooper and Nance, at which time Cooper still held the title to the land, and had given only a title bond, so that the lien then held was in the nature of an equitable mortgage, and would be as good for the personal property as the land, if the land was not to be conveyed until it was all paid. But in addition to that, the witness McLellen, who was present, assisted in making the calculations, and wrote the indorsement of credit on the bond, says that "all claims were settled, and, after paying all other claims, the balance due on the land was $413.61. * * * All other items were paid in full, and the balance due was on the land." It is certainly within the power of the...