Seeberg v. Norville

• Citation: 204 Ala. 20,85 So. 505
• Decision Date: 22 January 1920
• Docket Number: 1 Div. 126
• Parties: SEEBERG v. NORVILLE et al.
• Court: Supreme Court of Alabama

85 So. 505

204 Ala. 20

SEEBERG v. NORVILLE et al.

1 Div. 126

Supreme Court of Alabama

January 22, 1920

Appeal from Circuit Court, Mobile County; Claud A. Grayson, Judge.

Bill by Rolf Seeberg against Peyton Norville and others to set aside a mortgage executed by Norville to Mrs. Kelly, to require a reconveyance by Norville to Seeberg, and to hold them both as trustees. From a decree sustaining demurrers to the bill complainant appeals. Reversed, rendered, and remanded.

D.B Cobbs, of Mobile, for appellant.

Gaillard Mahorner & Arnold, of Mobile, for appellees.

BROWN J.

This is the second appeal in this case; this appeal, like the former, being from an interlocutory decree of the circuit court sustaining demurrers to the bill. On the former appeal it was held, in the absence of averments showing fraud on the part of Mitchell, participated in by the respondent Norville, the bill was without equity; but it appearing that the bill might be so amended as to give it equity, while the decree sustaining the demurrers was affirmed, the time granted by the decree for amending the bill was extended for 30 days. Seeberg v. Norville et al., 202 Ala. 417, 80 So. 621.

Briefly stated, the facts presented by the bill as subsequently amended are these: The complainant being indebted to N.A. Andresen & Co., of Christiania, Norway, in a sum in excess of the value of the property described in the bill, and of which the complainant was then seized and possessed, and complainant desiring to leave Mobile, where he then resided, and at the same time so arrange that the property could be sold on request of his creditor, and the proceeds of the sale applied on the debt, he on the 14th day of June, 1912, executed to one John E. Mitchell a power of attorney, which, omitting the caption and the description of the property, is in the following words:

"For value received, we, Rolf Seeberg and Cecelia Seeberg, his wife, do hereby constitute and appoint John E. Mitchell, Esq., of Mobile, Alabama, our irrevocable attorney in fact, with full power and authority in our names and behalf to bargain, sell, transfer, and convey to any person or corporation whatever and for such sum as he may obtain therefor, the following described lands situated in the city and county of Mobile and state of Alabama: [[Description of property omitted.] And the title purporting to be conveyed by our said attorney in fact, the said Rolf Seeberg does hereby fully warrant and will defend against all lawful claims: Provided, however, that no conveyance shall be executed by our said attorney in fact without a written request to him from said N.A. Andresen & Co., of Christiania, Norway, to such effect. All expenses of sale, including a reasonable attorney's fee, recording fees, and payment of taxes, assessments, and other liens against said property, shall be paid by our said attorney in fact out of the proceeds of sale, and the balance thereof shall be paid over by him to the said N.A. Andresen & Co.

"In witness whereof we have hereunto set our hands this 14th day of June, 1912."

On the 19th day of February, 1918, 5 years and 6 months after execution of the power of attorney, Mitchell, for a consideration of $600, by deed reciting, "This conveyance is made under and by virtue of that certain power of attorney from Rolf Seeberg and wife to John E. Mitchell, dated the 14th day of June, 1912, and the written consent of N.A. Andresen & Co. attached to said power of attorney, and said power of attorney and written request being recorded in Miscellaneous Book 10, page 415, in the office of the judge of probate aforesaid," sold and conveyed the property in controversy, which the bill alleges was then worth from $4,000 to $5,000, to the respondent Norville, who borrowed from the respondent Kelly $500 to be used in the payment of the purchase money to Mitchell, and to secure which Norville executed a mortgage on the property to Kelly.

During the time intervening between the granting of the power to Mitchell and his attempted execution thereof, the debt to Andresen & Co. was paid in full. After stating these facts, the bill avers:

"Complainant shows that before, at, and after the time when said agent made the said attempted deed herein mentioned there were persons in Mobile and Mobile county ready, able and willing to buy said property at a much larger price than said agent obtained, and that said agent, if he had used the care and diligence which his relation to complainant under said power of attorney required of him, could have obtained a price for said property which was much larger than the price he got, and one not greatly less than the fair and reasonable market value of said property described in said power; at the time of said attempted deed that said agent knew, or by the exercise of reasonable diligence could have known, and said agent did know, when he had his negotiations with said Norville that the price of six hundred ($600) dollars would be and was, and in fact it was, a gross and unconscionable sacrifice price to accept for the property described in said power, a grievous wrong to complainant, all of which said Norville knew at the time of his negotiations and of the attempted sale, and said agent and said Norville conspired together to sacrifice in the manner herein stated the interest of complainant in the property described in said power of attorney, by the attempted sale and purchase thereof and attempted deed as herein stated.

"Complainant further shows that it was the mutual purpose and intention of agent and said Norville to throw away and sacrifice in that way complainant's interest, by selling and buying the property described in the power of attorney for said inadequate and unconscionable consideration. Said Norville knew and said agent knew that said property was fairly and reasonably worth, and it was in fact fairly and reasonably worth, to wit, four thousand ($4,000) dollars when said negotiations to sell and buy were had, and they knew that complainant, if consulted, would not have let it go at the price said agent did obtain, and by collusion between them, for the purpose of defrauding complainant by making a sacrifice of said property as stated above, they agreed to sell and buy the same at said unconscionable

price of six hundred ($600) dollars, and with the intention on the part of each to make an unconscionable sacrifice of the property described in said power, when said Norville knew that it was the duty of said agent to complainant to obtain a price for the property described in the power which would be not greatly less than its fair and reasonable market value at that time. And said agent with the intent to make a gross and unconscionable sacrifice of said property, and in violation of his fiduciary duty to said complainant under said circumstances, and under said power of attorney, agreed with said Norville to so sacrifice said property to him, and said Norville, knowing said duty existed, and with intent to join said agent in said violation of his said fiduciary duty, agreed to so buy the property at said sacrifice price, and the two of them participated in the violation by said agent of his said duty to complainant, by attempting to carry out said agreement, and by making said sale and said attempted deed for said grossly and unconscionably inadequate price.

"Complainant further shows that, when the negotiations were had and the sale made as herein stated, complainant owned the right of way described in said attempted deed in addition to the property described in said power of attorney. And it was but a part of said intent on the part of said agent and said Norville to grossly and unconscionably sacrifice complainant's interest in the property described in the power of attorney that said right of way was included in said attempted deed. Said agent and said Norville had no communication with complainant about said property or said negotiations for a sale of it, or of any part of it, and complainant was not informed of the intention of either of them concerning said negotiations or sale, and they purposely refrained from having any communications with complainant concerning their said negotiations and intentions to sell or buy, and co

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