Sewell v. Walkley
Decision Date | 30 November 1916 |
Docket Number | 5 Div. 592 |
Citation | 73 So. 422,198 Ala. 152 |
Parties | SEWELL v. WALKLEY et al. |
Court | Alabama Supreme Court |
Appeal from Chancery Court, Elmore County; W.W. Whiteside Chancellor.
Bill by Earle V. Walkley and others against N.B. Sewell. Demurrer to bill of complaint as amended overruled, and defendant appeals. Affirmed.
Thomas & Wiley, of Montgomery, for appellant.
W.A Gunter, of Montgomery, and C.E.O. Timmerman, of Prattville for appellees.
Disregarding several unnecessary allegations, the amended bill of complaint shows that complainants executed a deed to respondent conveying certain land belonging to one of the complainants; that this deed, though absolute in form, was agreed and understood to be a mortgage for the security of $600 due from one of the complainants, and $1,000 to be presently loaned to the other complainant; that the $1,000 was never in fact advanced; and that complainants are entitled to redeem and have a reconveyance of the land. The bill, judged by its special prayer for relief, is essentially a bill to redeem and in this aspect it clearly contains equity, and is not subject to any of the grounds of demurrer.
The demurrers are directed to the bill as a whole, and could not be sustained, even if particular allegations hint at relief in other aspects which they would not support. Manifestly, however, the amended bill makes a simple issue of fact, viz., whether the conveyance was an absolute deed or a mortgage, and complainants' right to an accounting and redemption will turn upon that issue.
We note that counsel for complainants (appellees here) discuss the pleadings upon the theory, also, that the bill is for the cancellation of the deed mortgage as a fraud upon complainants; fraud being predicated on the charge that the deed was delivered to respondent for examination, and upon his promise, if found satisfactory, to pay over the $1,000 to complainants next morning, and that he retained and recorded the deed and afterwards refused to pay the money, "although pressed to do so." The mere refusal of a party to perform, as by the payment of money or other consideration for a deed, is clearly not such a fraud as will authorize rescission of the deed by a court of equity at the suit of the grantor. Gardner v. Knight, 124 Ala. 273, 27 So. 298; 6 Cyc. 288, 289.
It may be that where the grantee's performance is imposed as a condition subsequent to the retention...
To continue reading
Request your trial-
Lewis v. Davis
... ... If there was ... no indebtedness the conveyance cannot be a mortgage ... Everett v. Estes, 189 Ala. 60, 66 So. 615; ... Sewell v. Holley, 189 Ala. 121, 66 So. 506; ... Martin v. Martin, 123 Ala. 191, 26 So. 525; ... Smith v. Smith, 153 Ala. 504, 45 So. 168; ... Ellington ... ...
-
Crew v. W.T. Smith Lumber Co.
...such relief would be inconsistent with the allegations of said cross bill. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Sewell v. Walkley, 198 Ala. 152, 73 So. 422. Therefore this portion of the final decree must be The remainder of the final decree is due to be affirmed. Affirmed in part......
-
Kelly v. Carmichael
... ... grounds that go to the bill as a whole were well taken ... Nelson et al. v. Wadsworth et al., 171 Ala. 603, 55 ... So. 120; Sewell v. Walkley et al., 198 Ala. 152, 73 ... So. 422; Gillespie et al. v. Gibbs et al., 147 Ala ... 449, 41 So. 868 ... The ... only ... ...
-
Glenn v. City of Birmingham
... ... 384. See, also, for other and different illustrations: ... Seaboard Air Line Rwy. Co. v. Anniston Mfg. Co., 186 ... Ala. 264, 65 So. 187; Sewell v. Walkley, 198 Ala ... 152, 73 So. 422; Wynn v. Hoffman, 203 Ala. 72, 82 ... So. 32; Russell v. Carver, 208 Ala. 219, 94 So. 128; ... Johnson v ... ...