Ridley v. Moyer

• Decision Date: 09 May 1935
• Docket Number: 8 Div. 603
• Citation: Ridley v. Moyer, 230 Ala. 517, 161 So. 526 (Ala. 1935)
• Parties: RIDLEY et al. v. MOYER.
• Court: Alabama Supreme Court

161 So. 526

230 Ala. 517

RIDLEY et al. v. MOYER.

8 Div. 603

Supreme Court of Alabama

May 9, 1935

Rehearing Denied June 6, 1935.

Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.

Suit in equity by S.G. Moyer against Luke Ridley and Lula Ridley.From a decree overruling a demurrer to the bill, respondents appeal.

Affirmed.

Kirk &amp Rather, of Tuscumbia, for appellants.

J.H Nathan, of Sheffield, for appellee.

THOMAS Justice.

This appeal is from a decree overruling demurrers to the amended bill.

It is averred, that on February 27, 1924, appellee purchased from appellants a tract of land consisting of 15 acres of land, to be subdivided into streets and lots.On the 6th day of March 1924, the deed and mortgage exhibited were executed.The latter recited an indebtedness of $5,315.70, evidenced by three promissory notes as follows: One for $315.70, due July 6, 1924; one for $2,500, payable March 6, 1925; and the third for $2,500, payable on or before March 6, 1926, each note bearing interest from date, payable annually.It was stipulated in the mortgage securing same, that if the amounts due upon said notes "when the same respectively fall due" are paid, "then this conveyance is to become void, but on *** failure to pay said notes or either of them as stipulated therein, in part or in full," or failure to "keep all taxes against said real estate paid, then or in either event above enumerated all of the indebtedness evidenced by this mortgage and still unpaid shall immediately mature and become due"; that "it is expressly understood and agreed that a strip Two Hundred and Ten (210) feet wide off the west side of said real estate shall be released at the rate of Seventy-five ($75.00) Dollars per lot according to the map and plan of said real estate."

It is averted that prior to the execution of the deed and mortgage negotiations were had between complainant and defendants for subdivision of the land into lots and blocks with streets and alleys, and thus enable complainant to offer the property for sale and in turn pay the balance of the purchase money for said tract; that for that purpose and with that end in view, defendants agreed as a part of the contract for the sale and purchase that a strip of said land 210 feet wide off the west side of said parcel, estimated to be 1,100 feet in length, be released from the mortgage to be executed by complainant upon payment to defendants of the sum of $75 per lot, said lots to be 50 feet wide and 145 feet in depth, and to be platted by complainant with a 50-foot street along the west, north, and south borders of said parcel, a 50-foot street dividing said 1,100-foot strip, and a 15-foot alley or driveway along the east border of said 1,100-foot strip, leaving 19 lots which were to be released by defendants from the mortgage to be executed by complainant upon payment of $75 per lot.

It is further averred that for the benefit of complainant and without affecting or intending to affect his rights to have these lots released from defendants' mortgage, according to the agreement between complainant and defendants, complainant platted the lots as Fordson Park Terrace, each having a frontage of 35 feet and a depth of 100 feet; that complainant, on July, 1924, paid $315.70, with interest, and on March 2, 1926, he paid $1,900, at which time he demanded from defendants release of all the lots contained in the 210-foot strip off the west side of said parcel of land, which demand was refused as to any of said lots or any part of the 210-foot strip.

It is further averred that subsequent to the execution of this contract and mortgage, and the payment of said sums of money, complainant sold a number of the lots in the 210-foot strip and executed and delivered warranty deeds to the same, relying on the contract with the defendants that said lots so sold would be released from the mortgage; that on September 3, 1928, defendants foreclosed the mortgage and bid in the property, and on December 4, 1928, defendants"attempted to vacate the recorded plat of Fordson Park Terrace," etc.

The prayer was for the release of the lots in question from the mortgage, and for such general relief as complainant's "rights and equities may justify."

The amended bill sets forth the agreement of the parties for subdivision and release of the lots as follows: "The parties of first part have sold unto the said S.G. Moyer their 15 acres of land adjoining Warren Estate and others for $400.00 per acre.The said S.G. Moyer contemplates platting said land into city lots and the parties of the first part agree to release lots for $75.00 per lot on each and every lot in a strip 210 feet wide clear along West side of said land, said money paid to be applied of (on) first note due, $200.00 is hereby paid cash in hand, $600.00 additional to be paid when deed and abstract is delivered, which is to be delivered within 2 weeks from this date.The party of the second part is to give his personal note for $200.00 and mortgage on said land for $5,000.00, payable on or before one and 2 years from date of deed with 8% interest (even notes).Title to be a merchantable title."

As to this agreement, it is averred:

"*** That by the terms of said contract herein referred to in this paragraph, it was provided that said 1100 foot strip, being one acre in width and 1100 feet in length, makes approximately 5 acres, which under the terms of said agreement, allowing 7 lots to the acre, would make 35 lots to said strip, and complainant alleges that with the understanding and agreement as herein set forth, defendants and complainant executed the instruments (the deed and mortgage) made Exhibits 1 and 2 to this Bill of Complaint. ***

"That for the benefit of complainant and without affecting or intending to affect his rights to have said lots released from defendants' mortgage, in accordance with the said agreement that the lots to be released should be seven to the acre, containing approximately 6223 square feet, he platted the land as Fordson Park Terrace, each lot having a fronting of 35 feet and a depth of 100 feet, making the contents of each lot 3500 feet.Bu

...