O'Rear v. O'Rear

• Decision Date: 26 October 1933
• Docket Number: 6 Div. 292.
• Citation: 150 So. 502,227 Ala. 403
• Court: Alabama Supreme Court
• Parties: O'REAR v. O'REAR.

150 So. 502

227 Ala. 403

O'REAR v. O'REAR.

6 Div. 292.

Supreme Court of Alabama

October 26, 1933

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Bill to declare dead a mortgage and cancel it by Martin O'Rear against J. D. O'Rear and another. From a decree for complainant, the named defendant appeals.

Affirmed.

See also, 150 So. 506.

Where reference was made with directions to determine money advanced by mortgagee or his brother to mortgagor for redemption or partition of land, exception to register's report dealing with amount advanced by mortgagee and his brother for purpose of furnishing college education held properly sustained as not within reference.

The bill is by the appellee against the appellant and another seeking to have a deed embracing the property, the subject of the controversy between the parties, declared a mortgage and canceled on the ground that the indebtedness secured thereby was paid prior to the filing of the bill, and for general relief.

The equity of the bill was upheld on the appeal of the defendant from a decree overruling his demurrers thereto. O'Rear v. O'Rear, 220 Ala. 85, 123 So. 895.

Thereafter on the coming in of the answers and special pleas filed by the defendant, appellant here, testimony was taken and the cause was submitted for final decree on the testimony duly noted by both parties under rule 75 of Chancery Practice, and on August 8, 1931, the court entered a decree adjudging that the complainant was entitled to relief, and referring the matter of stating the accounts between the parties to the register, embodying therein the following:

"3. It is referred to the Register of this court to state an account between the complainant and the respondent, J. D O'Rear, and ascertain what, if any, amount remains due and unpaid by the complainant to said respondent, charging the complainant with the monies so advanced to or for the benefit of the said Martin O'Rear and crediting him with all payments that have been made thereon. The Register is directed to include as items of debit against the said Martin O'Rear all monies paid out as taxes on any of the lands described in the deed taken from J. H. Bankhead, Jr., and Musa Bankhead above referred to, and also to charge against the said Martin O'Rear any necessary and beneficial improvements which may have been made on any of said lands by the respondent, J. D. O'Rear, said sums for improvements not to exceed the rents received by the said J. D. O'Rear from said lands, with which rents he shall be charged in the account. The Register is also directed to charge against the said Martin O'Rear any sums of money which the respondent may have been caused to pay in properly prosecuting any law suits involving the title to the lands, not, however, including any cost in this suit, as to which the question as to cost is reserved for future decree. All affidavits, depositions and documents which have been made or filed in this cause may be used on reference before the Register, and in the consideration of the evidence he shall limit the same to that which is legal.

"The Register is directed to report his finding on the reference to this court for further consideration and decree by the court."

Thereafter, on October 22, 1931, the parties through their solicitors entered into an agreement, which was filed in the cause, stipulating "that the court may appoint as Special Master in this case either Norman Gunn or Carter Manasco; and that hearing of the reference before the Special Master the testimony already taken in the case may be used and such other testimony as the Special Master may desire to hear and such as the parties hereto may take."

The court thereupon entered an order appointing Manasco a special register, and on the hearing before him the parties and some of their witnesses were re-examined, and some additional testimony was taken, and the matter of stating the account was submitted to the special register for consideration and report. On this submission, so far as appears from the record on this appeal, the complainant filed no note of his testimony, but the defendant filed a formal note of testimony, such as is required by rule 75 of Chancery Practice, except that it was not signed or certified as correct by the register. Code of 1923, Vol. 4, page 930.

On December 2, 1931, the special register made and filed his report. This report by agreement of the parties, as recited in the decretal order of December 12, 1931, was "set aside and the cause is referred back to the Special Register for further consideration, for a re-opening of the hearing on reference, the taking of additional testimony, if desired, and a new finding and report," and the cause held for further orders on the coming in of the special register's report.

On the resubmission of the matter to the special register, no note of testimony was filed by the complainant, but defendant refiled the same note of testimony that he filed on the first hearing before the special register, noting therein some of the testimony taken before the register on the hearing of the reference.

On March 16, 1932, the special register made and filed a report restating the accounts between the parties. To this report both parties filed exceptions.

The complainant's exception numbered 2, questions the allowance of an item of $200 advanced by defendant and R. A. O'Rear to Joe Martin O'Rear to aid him in attending college. Exception 3 questions the allowance of an item of $125 advanced for a like purpose, on the ground that these items were not within the terms of the decree of the court ordering the reference. Exceptions 4 and 5 question the correctness of the method of computing interest on certain of the items. Exception 6 questions the allowance of an item of $2,150 against complainant, consisting of an order issued by R. A. O'Rear to complainant to pay the defendant J. D. O'Rear said sum. The grounds of this exception are that the order was not shown to have been accepted by complainant, and it related to matters not within the terms of the decree of reference. To support the first ground of this exception complainant notes the testimony of both J. D. O'Rear and "Martin O'Rear, as set out on pages 30 to 35 inclusive of Martin O'Rear's deposition, taken before the Commissioner on the 5th and 6th days of January, 1932." (Italics supplied.)

Exception 7 deals with an item of "April 7th, 1922, Taxes paid on lands $540.25, because there is no evidence showing that J. D. O'Rear paid this amount for taxes for Martin O'Rear on the lands involved in this litigation; because the evidence conclusively shows, as set out on pages 30 to 33 inclusive of Martin O'Rear, taken before the Commissioner on January 6th, 1932, borrowed this money at the Bank of the Jasper Trust Co., and gave his note for said amount, and that J. D. O'Rear endorsed the note with him, and that Martin O'Rear paid this note to the bank, and no part of which was ever paid by J. D. O'Rear."

The defendant's exceptions, four in number, deal with the failure of the register to allow compensation to defendant in looking after the cutting of timber and keeping a record thereof; not allowing expenses on the trip to Montgomery in connection with a lawsuit; not allowing expenses of a trip to Mississippi and the expenses of witnesses in respect to other litigation, and failure to charge complainant with $1,000 collected from Aaron & McNeal.

Upon consideration of the report and the exceptions thereto, and as the decree recites, "and of all the legal evidence upon the...