Planters' Warehouse & Commission Co. v. Barnes

• Decision Date: 22 November 1934
• Docket Number: 2 Div. 49.
• Citation: 229 Ala. 572,159 So. 63
• Court: Alabama Supreme Court
• Parties: PLANTERS' WAREHOUSE & COMMISSION CO. v. BARNES et al.

159 So. 63

229 Ala. 572

PLANTERS' WAREHOUSE & COMMISSION CO. v. BARNES et al.

2 Div. 49.

Supreme Court of Alabama

November 22, 1934

Rehearing Denied Jan. 24, 1935.

Appeal from Circuit Court, Greene County; Benj. F. Elmore, Judge.

Bill for an accounting and enforcement of a trust or lien by the Planters' Warehouse & Commission Company against Katie S Barnes, individually and as executrix of the will of Reginald W. Barnes, deceased, and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

See also, First Nat. Bank of Eutaw v. Barnes (Ala. Sup.) 159 So. 68.

McKinley & McDaniel, of Linden, for appellant.

J. F Aldridge, of Eutaw, and Rushton, Crenshaw & Rushton, of Montgomery, for appellees.

THOMAS Justice.

The bill was for an accounting for debts due complainant by tenants in common operating their lands as a partnership, and for the debt of one of the partners to complainant which the other partner for a consideration contracted to pay in purchase of the interest in the land in question.

The bill avers: That on November 2, 1912, William Scears, deceased, and one J. C. Lee owned certain described lands as tenants in common, and the latter conveyed his interest to Reginald W. Barnes; that Scears became indebted to complainant; that Scears and Barnes from and after November 30, 1912, as partners, operated said lands, contracted debts, and became indebted to complainant in this farming venture; that "on the date of his death the said William Scears in his own name, and as a member of the partnership of William Scears plantation and (or) Scears plantation, was largely indebted to your orator as hereinafter stated," and which said indebtedness with interest is still unpaid; that on September 5, 1921, the said Scears departed this life owning an undivided one-half interest in said land and devising said and other lands to defendants and others as indicated in his will which was duly probated; that within twelve months after the death of Scears, his wife and a beneficiary under that will assumed and agreed to pay complainant all the indebtedness owing by Scears "at the time of his death," and thereafter Mr. Barnes and Mrs. Scears, "until the date of her death, as partners operated the plantation described in Section 2 of this bill, and transacted business with your orator."

It is further averred that on April 7, 1924, "the said Carrie B. Scears, who was at the time of her death a resident of Greene County, Alabama, departed this life intestate; that at the time of her death she was a widow and left her surviving as her next of kin and only heirs at law her three daughters, viz.: the said Mamie S. Sellers, who was and is the wife of Wilbur A. Sellers, Carolyn S. Palmer, who was and is the wife of William Palmer, Jr., and the said Katie S. Barnes, who was at that time the wife of the said Reginald W. Barnes and is now his widow-her said three daughters being also the daughters and the sole heirs at law and next of kin of the said William Scears, deceased; that the said Mamie S. Sellers, Carolyn S. Palmer and Katie S. Barnes inherited from their mother, the said Carrie B. Scears, deceased, the undivided one-half interest in and to the lands described in section 2 of this bill of complaint which she had acquired through the last will and testament of the said William Scears, and other property"; that on November 22, 1924, thereafter, the said Mamie S. Sellers and her husband, Wilbur A. Sellers, Carolyn S. Palmer and her husband, William M. Palmer, Jr., and the defendant Katie S. Barnes, "for a recited consideration of to-wit, $10.00, and in further consideration of the said Reginald W. Barnes' assuming and agreeing to pay two certain mortgages executed by William Scears, Carrie B. Scears, Reginald W. Barnes and Katie S. Barnes to the Union Central Life Insurance Company and which said mortgages were alleged to have been transferred to and owned by the City National Bank of Tuscaloosa, and in further consideration of the said Reginald W. Barnes' assuming and agreeing to pay all of the outstanding indebtedness of William Scears deceased, and all of the outstanding indebtedness of Carrie B. Scears, deceased, did grant, bargain, sell and convey unto the said Reginald W. Barnes (the husband of said Katie S. Barnes) all of their undivided one- half interest in and to the lands described in section 2 of this bill of complaint; * * * that upon the execution of the deed of which Exhibit A hereto is a copy the said Reginald W. Barnes did in fact assume and agree to pay orator the said outstanding indebtedness of the said William Scears, deceased, and the outstanding indebtedness of the said Carrie B. Scears, deceased, to your orator, and, as orator is informed and believes and on such information and belief it avers as a fact, the said Reginald W. Barnes thereafter paid the mortgage indebtedness mentioned in the deed of which Exhibit A is a copy, and also paid the indebtedness owing to certain other creditors by the said William Scears deceased and Carrie B. Scears, deceased." Italics supplied.)

It is further averred that complainant did not know until after the death of Mr. Barnes, "of the terms, conditions or recitals in the deed, * * * nor did it know that as the purchase price or as a part of the purchase price for the one-half interest in the lands therein conveyed, or as the consideration, or as a part of the consideration, for the execution of said deed by the grantors therein named, the said Reginald Barnes agreed to pay all of the outstanding indebtedness of the said William Scears deceased, and all of the outstanding indebtedness of the said Carrie B. Scears, deceased." (Italics supplied.)

It is further averred as a fact, "that the contract and agreement of the said Reginald v. Barnes, set out in Exhibit A, to pay all of the outstanding indebtedness of the said William Scears, deeased, and all of the outstanding indebtedness of the said Carrie B. Scears, deceased, created an equitable mortgage, charge or lien on the half interest in the lands conveyed to him by said deed, or a trust in said half interest in said lands, in favor or inuring to the benefit of your orator, and then existing creditor of the said William Scears, deceased, and of the said Carrie B. Scears, deceased, on the undivided half interest in the lands conveyed by said deed, the security for the payment of said indebtedness to orator; orator avers that the indebtedness of the said William Scears, deceased, and the indebtedness of the said Carrie B. Scears, deceased, to it is and are still unpaid."

It is further averred: "That the said Reginald W. Barnes was, at the time of the death of the said William Scears and at the time of the death of Carrie B. Scears, and for a long time prior thereto, and thereafter until November 22, 1924 (and he was on said date), and thereafter until his own death, secretary and treasurer of your orator, and as such at all times had charge and management of orator's business and affairs, custody of its notes, securities, evidences of debt and books of account, acted as its bookkeeper, kept its records and either personally recorded all of its business transactions or supervised the writing up of the same, and had knowledge of the indebtedness of the said William Scears, and of the said Carrie B. Scears, and of said partnerships, to your orator."

The recitals in the deed are: "That for and in consideration of the sum of Ten Dollars cash to us in hand paid by Reginald W. Barnes, the receipt whereof is hereby acknowledged, and in further consideration of the said Reginald W. Barnes assuming and agreeing to pay those two certain mortgages executed by William Scears and his wife Carrie B. Scears and by Reginald W. Barnes and his wife Katie S. Barnes to the Union Central Life Insurance Company, and which said mortgages have been transferred to, and are now held and owned by, the City National Bank of Tuscaloosa; and in further consideration of the said Reginald W. Barnes assuming and agreeing to pay all of the outstanding indebtedness of Carrie B. Scears deceased, and assuming and agreeing to pay all of the outstanding indebtedness of William Scears, deceased, we, the undersigned Mamie S. Sellers and her husband, Wilbur A. Sellers, Carolyn S. Palmer and her husband, Williaim M. Palmer, Jr., and Katie S. Barnes, the wife of the said Reginald W. Barnes (the said Mamie S. Sellers, Carolyn S. Palmer and Katie S. Barnes being the sole surviving heirs at law and children of the said Carrie B. Scears, deceased, and of William Scears, deceased) have granted, bargained, sold and conveyed, and do by these presents grant, bargain, sell and convey unto the said Reginald W. Barnes all of our undivided half interest in and to the following described lands in Greene County, Alabama (describing the land); * * * that we do, and our heirs, executors and administrators shall, forever warrant and defend the title to the same unto the said Reginald W. Barnes and unto his heirs and assigns, against all of the lawful claim or claims of any and all persons whomsoever, except as to any claim or claims under said mortgages herein assumed by the said Reginald W. Barnes, and except as against any claim or claims against the estate of William Scears deceased and against the estate of Carrie B. Scears deceased." The bill avers that defendants claim some interest in the subject-matter; that any interest or lien or incumbrance therein acquired by them was subsequent to the date when the deed exhibited was duly executed and recorded. An accounting is sought as to the respective indebtednesses of Scears and wife, and the declaring of an equitable mortgage and foreclosure of the instrument in question as provided...