Peck v. Ashurst

• Decision Date: 18 December 1895
• Parties: PECK ET AL. v. ASHURST. [1]
• Court: Alabama Supreme Court

19 So. 781

108 Ala. 429

PECK ET AL. v. ASHURST. ^[1]

Supreme Court of Alabama

December 18, 1895

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Bill by James V. Ashurst against W. D. Peck, administrator, and others, for the specific performance of a contract for the sale of land. Decree for complainant, and defendants appeal. Affirmed.

The bill in this case was filed by James V. Ashurst, the appellee, to enforce the specific performance of a written contract for the sale of land. From it it appears that A. B Peck, under an arrangement with Charles F. Ashurst, purchased from W. T. Burney a plantation containing 793 acres of land lying and being in Tallapoosa county, Ala., known as the "Burney Place," and described in a deed from Burney and wife to said A. B. Peck. The contract, signed by said Peck, contains the following agreement: "It is agreed that when Charles F. Ashurst, of Tallapoosa county, pays or causes to be paid to me, the $4,000, the same being the purchase money, [paid by said Peck to Burney for the land] with interest at ten per cent. per annum, then I promise and agree to make to the said Ashurst, the same warranty titles that Burney and wife made to me. It is further understood and this contract is based on a note that Ashurst has this day executed to me, and another that he will hereafter execute, covering said $4,000, with interest as stated." This contract was dated, Montgomery, Ala., December 1, 1886. It is alleged that "whether said notes were in fact executed, orator does not know;" that said Charles F Ashurst was put in possession of the land and so remained, until the fall of 1887, when he died; that before his death, said Charles F. Ashurst made considerable payments thereon to said Peck, the amount of which was unknown to complainant; that on the death of said Charles F. Ashurst said Peck took possession, received the crops and rents for 1887, in value of $1,000, and remained in possession receiving the rents and profits until he, Peck, died, and having, also, the use and occupation of such of the lands as were not rented, for several years; that since the death of A. B. Peck, his administrator, W. D. Peck, as such, has remained in possession of said lands, receiving each year, the rents of such portion as was rented out, and the use and occupation of such as was not rented, the value of the rents being $1,000 per year, and a like sum for use and occupation; that the sums received as rents, and the use and occupation by said A. B. Peck, before his death, and since, by his administrator, are credits on said debt, and that said administrator is now in possession as such administrator, of said lands; that Charles F. Ashurst on the 17th of January, 1887, conveyed by way of mortgage, his interest in said lands, with other property, to a firm doing business at Montgomery, Ala., under the name of Lehman, Durr & Co., to secure a debt due in 1887; that the mortgage provided, that two members of said firm, Durr and Goetter, or either of them, might sell in default of payment; that default was made, and Durr and Goetter sold said lands, and other lands, under the power of sale, and the same were bought by and duly conveyed to one Meyer Lehman, for the sum of $3,000; that afterwards, on the 18th February, 1889, said Meyer Lehman duly conveyed the said lands, with all his rights, title, interest and claim in and to them, to complainant; that complainant immediately after said conveyance to him, offered to pay said W. D. Peck, as administrator, whatever balance then was due A. B. Peck's estate, on the purchase of the lands, which offer was refused, and complainant, as the bill recites, "now here offers and submits to pay, whatever sum may be found due to the estate of A. B. Peck on a just accounting, on the purchase of said lands"; that A. B. Peck died intestate leaving the following children heirs at law, to wit: Carrie R. Ashurst, W. D. Peck, Lottie Pope and his widow, Sallie Peck, all of whom were over 21 years of age, who, with W. D. Peck, both as administrator and individually, are made parties defendants. The prayer was that "an account of the balance due on said debt of $4,000, due from said Charles F. Ashurst in the purchase of the Burney lands, may be taken, and that all just credits may be allowed, and that orator be decreed to be entitled to a conveyance of said lands upon paying the balance due on such debt, which he is willing and hereby offers to pay, as the court may direct." The defendants demurred, and the chancellor sustained the demurrer. His rulings were reversed by the supreme court, and the original demurrer was not again interposed. Another demurrer on other grounds was interposed as follows: (1) "Said bill fails to show with sufficient certainty what the terms of the contract were, as finally consummated between A. B. Peck and Charles F. Ashurst, in that it fails to allege whether Charles F. Ashurst in fact executed the notes which, by the terms of said contract, he was afterwards to execute, and prays no discovery in respect to the same." (2) Substantially the same as the first, except it is added, that the bill fails to show that complainant had made any effort to inform himself as to the existence and effect of the notes, without avail. (3) That on the facts stated in said bill, the complainant has so acquiesced in the assertion by said vendor and his personal representative of possession of said lands, and the reception by them of the rents and profits, that a court of equity, in the discretionary exercise of its jurisdiction to enforce executory agreements, should not lend its aid in the enforcement of said contract.

In the answers, defendants admit the execution of the contract between Peck and Ashurst; that said Peck died intestate and that the parties named are his heirs at law; that A. B. Peck took possession of the lands, and after his death, that said administrator took possession of them; that A. B. Peck and his administrator, each received rents from the lands while in possession, which was not more than $500 per annum; that the mortgage by Charles F. Ashurst,-which they allege was the mortgage of Ashurst Bros. composed of said Chas. F. and complainant,-described property which belonged individually to the partners as shown on the face of the mortgage, and included the lands here involved, which are in said mortgage described as the individual property of said Charles F subject to an incumbrance in favor of A. B. Peck of $4,000; that in order to convey their individual property, the mortgage was signed by complainant, James V. and by Charles F. Ashurst, individually, which mortgage was also signed by J. V. Ashurst & Bro.; and they aver that said mortgage recites an indebtedness of said firm to Lehman, Durr & Co. and conveys the property to secure that indebtedness, and the obligation of the firm to deliver cotton &c., or to pay commissions in default of delivery, as is usually provided in mortgages to warehousemen and commission merchants; that said mortgage was foreclosed by Lehman, Durr & Co., and the execution of a conveyance by Durr and Goetter to Meyer Lehman, a member of said firm, is admitted; that said Meyer Lehman executed said conveyance to complainant, quitclaiming to him all his right, title, interest and claim in and to said lands, but they say said conveyance was executed, on the 15th February, 1890, and not on the 15th February, 1889, as averred in the bill. They deny that said Charles F. Ashurst made any payments on the land; that the administrator continued in possession; that complainant is entitled to the value of the rents and for use and occupation; that the indebtedness secured by said mortgage by Ashurst Bros. was the individual debt of said Charles F. Ashurst for which he alone was liable, but aver, that it was the debt of each of the partners for which they were both equally bound; they deny that the foreclosure of said mortgage was valid, which denial is based on the averment, that A. B. Peck had taken possession of the land, in default of the payment of the purchase money, and was in actual possession,...