Smith v. Allen

• Decision Date: 07 April 1927
• Docket Number: 7 Div. 676
• Citation: 215 Ala. 652,112 So. 224
• Parties: SMITH v. ALLEN et al.
• Court: Alabama Supreme Court

112 So. 224

215 Ala. 652

SMITH v. ALLEN et al.

7 Div. 676

Supreme Court of Alabama

April 7, 1927

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Bill in equity by T.A. Smith against M.M. Allen, M.J. Allen, Rollie Allen, Luther Allen, and H.D. Sturkie, and cross-bill by defendants. From a decree denying relief under the original bill and granting relief under the cross-bill, complainant appeals. Affirmed.

Hood &amp Murphree, J.M. Miller, and Shelton Street, all of Gadsden for appellant.

Inzer &amp Inzer and Dortch, Allen & Dortch, all of Gadsden, for appellees.

SAYRE J.

Appellant brought his bill to foreclose a mortgage. Appellees pleaded payment in full, and, along with the cancellation of the mortgage aforesaid, by cross-bill sought a decree cancelling a certain muniment of title, a quitclaim affecting the same land, which, as they contended, had been delivered to appellant, conditionally in effect, in the progress of negotiation between the parties looking to the vesting of title in the appellee Luther Allen but which was never consummated because appellee Rollie Allen afterwards refused to convey to appellant who was to convey in turn to Luther, whereby the consideration for the quitclaim wholly failed. Appellees conceded that a deed from appellant to them, dated October 7, 1921, executed and delivered to them during the progress of the same negotiation, but afterwards delivered by them to appellant and at the filing of the original bill still (it seems) retained by him, should be canceled. Decree was rendered in agreement with appellees' understanding and averment of the facts.

There are no disputed questions of law. The result depends entirely upon the solution of issues of fact as to which the evidence is in conflict in large part. Appellees note the fact that the testimony in the cause was taken ore tenus before the chancellor, and cites numerous cases to the general effect that the conclusion reached in the trial court upon such a hearing will be treated as the equivalent for presumptive purposes of the verdict of a jury. There is no dispute concerning the proposition of law involved, but the parties are not by any means agreed as to the proper operation and effect in this cause of the presumption indulged in such cases on appeal. The presumption is not conclusive, of course, and its weight and proper indulgence depend largely upon the circumstances of the particular case. All the witnesses in this cause--with the exception of 2, viz., Mr Being (not otherwise identified), who testified to a collateral circumstance having...