Sewell v. Holley

• Decision Date: 05 November 1914
• Docket Number: 540
• Parties: SEWELL et al. v. HOLLEY.
• Court: Alabama Supreme Court

66 So. 506

189 Ala. 121

SEWELL et al. v. HOLLEY.

No. 540

Supreme Court of Alabama

November 5, 1914

Appeal from Chancery Court, Elmore County; W.W. Whiteside Chancellor.

Suit by J.M. Holley against N.B. Sewell and others. Decree for complainant, and defendants appeal. Affirmed.

William H. & J.R. Thomas, of Montgomery, and J.A. Holmes and H.J Lancaster, both of Wetumpka, for appellants.

J.M Holley, H.R. Golson, and George F. Smoot, all of Wetumpka and Thetford, Blakey & Strassburger, of Montgomery, for appellee.

SAYRE J.

Complainant (appellee) as assignee of Alexander Kelly, by virtue of the latter's warranty deed to the land in controversy, filed this bill against Kelly and appellant Sewell to declare Kelly's deed to appellant a mortgage and to redeem. Kelly confessed the bill. Complainant had a decree in the court below against both defendants on pleading and proof. Hence this appeal by Sewell.

The decree of the court overruling a demurrer to the bill as last amended is assigned for error. The point taken by the demurrer, to follow its language closely, was that there were no averments in the bill showing or tending to show that the deed was to be treated as a mortgage either by Kelly or Sewell, nor any averments showing or tending to show that both said parties treated or considered said deed as a mortgage. This objection to the bill depends upon a construction of paragraph 2, which we here set out in extenso:

"Complainant further shows unto your honor: That said Alexander Kelly, prior to said 2d day of January, 1911, had executed and delivered a mortgage to one J.M. Barnett to secure a debt which is set forth in said mortgage. That said mortgage had been transferred by said J.M. Barnett to one T.J. Carling, trustee; that the said T.J. Carling, trustee, had undertaken to foreclose said mortgage, which attempted foreclosure was had prior to said 2d day of January, 1911. That during the month of December, 1910, the said N.B. Sewell had offered to lend to said Kelly a sufficient amount of money to redeem the above-described land from the said T.J. Carling, trustee. That the said Sewell agreed to lend the money to said Kelly upon the condition that the said Kelly execute and deliver to him a deed conveying to said Sewell the land which was covered by the mortgage which was executed by said Kelly to said Barnett. Said Sewell agreed that if the said Kelly would so execute the deed conveying said land to said Sewell, he [Sewell] would charge 8 per cent. interest on the money so loaned, and would allow the said Kelly as much time as was necessary for the payment of said debt.

"That in pursuance of the above-mentioned agreement, the said Kelly and his wife, Fannie C. Kelly, did on, to wit, the 2d day of January, 1911, execute a deed to the said N.B. Sewell, a copy of which deed is attached, as 'Exhibit A' to the original bill filed in said cause and made a part hereof. That said deed was consequently delivered to the said N.B. Sewell. The said Sewell furnished the said Kelly with the sum of, to wit, $2,936.36, which was used by said Kelly in redeeming said land from said Carling, trustee, said sum of money being advanced by said Sewell to said Kelly during, to wit, the month of July, 1911. That on the day when said money was delivered by said Sewell to said Kelly, said parties made a calculation as to the amount of money which was due by said Kelly to said Sewell. That said parties included in this settlement the above-mentioned sum of $2,936.36, and also certain other sums of money which had been previously loaned by said Sewell at the request and for the benefit of said Kelly. That at the time the said Sewell agreed that the said Kelly should have until the 1st day of October, 1913, to repay him on account of the several sums of money so loaned, said sums amounting in the aggregate to $3,152.81, together with interest at the rate of 8 per cent. per annum from October 1, 1911. That all the above-mentioned agreements were in parol. That said Kelly was in possession of said lands on January 2, 1911, and remained in possession until the filing of this bill."

If it be conceded that the bill wherein it sets forth the basic fact of complainant's right is not a model of careful pleading, it yet complies passably well with the statutory requirement in reference to bills in equity, which is that they "must contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition. *** The statute has not, however, been construed as in derogation of the cardinal rule, as it has been frequently termed, that the bill must show with accuracy and clearness all matters essential to the complainant's right to relief. These matters must not be made to depend upon inference, nor will ambiguous averments of them be accepted as sufficient. The averments must be direct and positive, not uncertain and inconclusive." Seals v. Robinson, 75 Ala. 363. Complainant's title should be stated with sufficient certainty and clearness to enable the court to see clearly that he has the right, and distinctly to inform the defendant of the grounds upon which the complainant depends for relief. Goldsby v. Goldsby, 67 Ala. 560.

In Smith v. Smith, 153 Ala. 504, 45 So. 168, a case of like general character with this, the court said:

"Furthermore, to show that a conveyance should operate as a mortgage, it is indispensable that the bill should aver the concurring intention of both parties at the time of the execution of the instrument that it should so operate."

But, of course, the court did not intend to hedge the pleader about with an inescapable form of words. Here the bill shows that the transaction in question originated in a negotiation for a loan, that defendant agreed that if Kelly would execute the deed, he should have a specified time in which to redeem by paying the debt with interest, and that in pursuance of said agreement the deed was executed. Our...