Noble's Adm'r v. Moses

• Decision Date: 17 February 1887
• Court: Alabama Supreme Court
• Parties: NOBLE'S ADM'R v. MOSES and others.

1 So. 217

81 Ala. 530

NOBLE'S ADM'R v. MOSES and others.

Supreme Court of Alabama

February 17, 1887

Appeal from chancery court, Montgomery county.

Bill in equity to vacate judgment, and for account and redemption under mortgage.

Troy, Tompkins & Loudon and Watts & Son for appellants.

Gunter & Blakey, for appellee.

STONE C.J.

Lucy B Noble, nee Lucy B. Micou, attained to her majority October 30, 1874. She had been relieved of the disabilities of minority by chancery decree rendered about 12 months before that time. She had a pretty large independent estate inherited from her deceased mother, and her father, B. H. Micou, was the guardian of her estate until she was so relieved of the disabilities of minority. She was a member and inmate of her father's family until her marriage in October, 1879, and we are not informed that any charge was made against her for board. B. H. Micou had been reputed to be a man of large wealth; but in 1874 he sustained financial reverses, was ruinously insolvent, and without credit. He had, through property of his wife,-a second marriage,-and the forbearance of his children, the use and control of two or more large plantations and the stock upon them; but he was without means or credit to conduct farming operations. Moses Bros., real estate agents, and having good credit, advanced for him, without security, during 1874, and thus enabled him to conduct his farming operations, and to support his family. At the close of that year, Micou fell indebted to them in the sum of $3,600 over and above what the crop yielded.

At the commencement of the year 1875, Moses Bros. were unwilling to advance further to B. H. Micou on his individual credit, and they so informed him. After some negotiations between B. H. Micou and Moses Bros., through one of their firm, it was agreed between them that the planting operations on the Prairie and Wollahatchie plantation and on the Campbell plantation should then be conducted in the name of Lucy B. Micou, and that she should give a crop lien and mortgage on the stock and crops to be grown to secure the same. Only two witnesses, B. H. Micou and one of the Moses brothers, speak of the terms of this agreement. B. H. Micou's testimony is as follows: "Moses Bros. at or about the close of 1874, or first of 1875, required some security for the balance due them by me at that time, and for the advances to be made to support my family and other expenses, and to make a crop in 1875, as a condition for extending the indebtedness, and for making further advances. The matter was talked over between Moses Bros. and myself, and Lucy being the only member of my immediate family who was in a condition to assume any responsibility, it was decided between us that I should obtain her consent to have the planting interest run in her name, and the stock, farming implements, and provisions on the Prairie and Wollahatchie plantations, which had been bought in for the benefit of my wife, should be transferred to her, and the business carried on in that way by me as her agent." The testimony of Moses: "Micou did desire to obtain advances to make a crop in 1875. At the time we agreed to make these advances for 1875, he stated that his daughter, Miss Lucy B. Micou, was willing for the planting to be conducted in her name and on her responsibility, and that she would assume payment of the balance of the account for 1874, and execute a mortgage to secure the balance of 1874 against B. H. Micou, and the advances to be made in 1875 for planting purposes, and B. H. Micou's family expenses, for taxes and insurance and other purposes. This was agreed to; but before the papers were executed, Mr. Micou stated, and it was agreed between us, that he should conduct the business on the Prairie, Wollahatchie and Campbell places as before stated, and on the Shorter place in the name of F. S. Boykin, who was to execute a mortgage to secure advances for that purpose; but with the further understanding that any profits on that place should be credited to the account of L. B. Micou at the close of the year, and losses, if any, should be debited to her account." The agreement spoken of by these witnesses was drawn up in writing, and bears date March 3, 1875. B. H. Micou procured the execution of it by Lucy B. Micou. Its recitals are as follows: "Whereas, I am justly indebted to Moses Bros. in the sum of three thousand dollars; and whereas, the said Moses Bros. have agreed to furnish to me, through my agent, Benjamin H. Micou, certain advances of meat, planting utensils, bagging and ties, and money to purchase other necessaries and supplies to enable us to carry on certain planting operations in said state and county that I am now conducting on the plantations lately owned and occupied by Benj. H. Micou, and known as the Prairie and Wollahatchie plantations and the Campbell plantation, and which are necessary to enable me to make a crop on said plantations; also advances of money and supplies to my agent, Benjamin H. Micou, for family support during the time of his attention to said business, and money to pay necessary taxes and expenses; said advances to be furnished from time to time, in amounts not to exceed altogether the sum of five hundred dollars per month during the present year." Said agreement then proceeded to convey to said Moses Bros. the stock of mules and horses on said places, and the crops of cotton and corn to be grown thereon during the year 1875, by way of mortgage, to secure said indebtedness and advances.

At the close of the year 1875 Moses Bros. were again unwilling to advance further without other and real security. It was then agreed between them and B. H. Micou that Lucy B. Micou should execute to them a mortgage on real estate to secure the balance due to them, which was agreed on at the sum of $13,460. Thereupon a note for that sum was drawn up, due December 1, 1876, and bearing interest from date, and a mortgage on real property as security for its payment; each of which papers B. H. Micou procured Lucy B. Micou, his daughter, to execute, bearing date February 7, 1876. The mortgage conveyed her undivided half interest in certain real estate in the city of Montgomery, in the Campbell plantation, and also conveyed certain personal property and crops to be grown that year. The mortgage contained a power of sale on default. In the reckoning and settlement which produced the balance of $13,460, certain items of debit were included which constitute the chief contention in this suit. Among these are the following: Two thousand dollars of the thirty-six hundred, left unpaid by B. H. Micou at the close of the year 1874. This was charged against Lucy B. Micou in the account of 1875, as of the first of that year. At the close of the year there was an ascertained deficit on the Shorter plantation of $5,012. That plantation had been cultivated in the name of one Boykin, but controlled by B. H. Micou. These two sums, with interest on the $2,000, entered into the ascertained balance of $13,460, for which the note and mortgage were given. Moses, the witness, testifies that this was in accordance with the agreement with B. H. Micou, and the latter does not controvert it.

At the close of the year 1876, Moses Bros. interposed other objections and exacted a change of security, as a condition of further indulgence and of further accommodations. The requirement at this time was that $13,000 of the debt, with some interest, should be placed in judgment against Lucy B. Micou. This B. H. Micou agreed to, and it was done accordingly; the judgment bearing date February term, 1877, of the city court of Montgomery, and for the sum of $13,053.35. In form the judgment is on jury and verdict; but the proof shows it was taken by consent. In the testimony of Moses, the witness, is the following language: "It was our purpose in part in having the judgment taken to cut off all further inquiry into the account." It is shown they had taken legal advice. In 1881, Moses Bros. attempted to force the collection of their said judgment by execution, and thereupon Lucy B. Noble filed this bill in January, 1882, and seeks to have the account overhauled and corrected.

As we understand the purpose and prayer of the bill, it does not seek to repudiate any proper expense incurred in the culivation of the plantations, in the maintenance of B. H. Micou's family, in the payment of taxes, and in other expenditures incidental to these, and to the preservation and productiveness of the property. It concedes the liability of herself and her estate for meat, planting utensils, bagging and ties, and money to purchase other necessaries and supplies to carry on the planting operations to be conducted in her name, and on the plantations named in the agreement. It also concedes a liability for B. H. Micou's family support during the term of his attention to said business, and money to pay necessary taxes and expenses,-said advances to be furnished from time to time, in amounts not to exceed altogether the sum of $500 per month during the year,-the alleged indebtedness for which constituted the basis of the mortgage and of the judgment. The chief purpose is to eliminate from the debit column of the account the two items of $2,000 and $5,012 described above, all other charges not falling within the classes for which she had bound herself, and all excess of interest charged above 8 per cent.

Situated as B. H. Micou and his daughter then were,-he financially ruined, and she in affluent circumstances,-there was something beautiful as well as natural in the filial spirit she manifested. A reasonable family settlement under such circumstances finds no condemnation in that high yet conservative morality which the court of chancery inculcates and...