Smith v. Hiles-Carver Co.

• Decision Date: 06 June 1895
• Citation: 107 Ala. 272,18 So. 37
• Parties: SMITH v. HILES-CARVER CO.
• Court: Alabama Supreme Court

18 So. 37

107 Ala. 272

SMITH v. HILES-CARVER CO.

Supreme Court of Alabama

June 6, 1895

Appeal from chancery court, Cleburne county; S. K. McSpadden Chancellor.

Suit by the Hiles-Carver Company against A. J. Smith. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Some time prior to November 1, 1886, the appellant, A. J. Smith purchased a tract of land in Clay county, Ala., from one Daniel S. Smith, executed his note to said Smith for the payment of the purchase money, and went into possession of the property, said Daniel S. Smith having executed and delivered to him a deed of conveyance thereto. On November 1 1886, A. J. Smith exchanged the lands thus purchased from Daniel S. Smith with one J. J. Holland for lands owned by said Holland in Cleburne county; Holland executing a deed to A. J. Smith for the lands in Cleburne county, and A. J. Smith executing a deed for the lands in Clay county, purchased from Daniel S. Smith. This exchange was made by A. J. Smith, with the consent of Daniel S. Smith, and upon the receipt of the deed to the lands in Cleburne county, and his taking possession thereof, A. J. Smith executed and delivered to Daniel S. Smith a note in lieu of the note given for the purchase of the Clay county lands, which was as follows "$700. Seven hundred dollars. By the first day of November next, I promise to pay Daniel S. Smith or bearer, the sum of seven hundred dollars, one hundred dollars a year, payable this Nov. first, 1886. This is a land note, and the following described land is bound for the payment of this note, to wit, the north-east fourth of section sixteen, township seventeen, R. nine, all in Cleburne county, Alabama." This note was duly signed by A. J. Smith, and attested. This note was transferred by Daniel S. Smith to one Stephen Nixon for a valuable consideration, and by said Nixon was transferred to the appellee, the Hiles-Carver Company. There was $200 paid on this note. Upon the failure of the maker of said note to pay the balance due thereon, the Hiles-Carver Company, on May 12, 1892, filed the bill in this case against A. J. Smith to enforce a vendor's lien on the lands described in the note. The bill was afterwards amended so as to claim an equitable lien or mortgage on the lands described as security for the debt evidenced by the note, and prayed for the foreclosure of the same in satisfaction of the debt, alleging that it was the intention of the maker and payee of the note, at the time of its execution, that it should operate as a lien or mortgage on the said lands as security for the debt evidenced by said note. The respondent demurred to the bill as amended, among others, upon the grounds that the bill as amended was a departure from the cause of action stated in the original bill, and that the prayer of the amended bill was inconsistent with the prayer of the original bill. The respondent also filed, as pleas to the bill as amended, the plea of nul tiel corporation, and also that the note had been altered since its execution, without the consent or authority of the maker. Neither of these pleas was verified by affidavit. The respondent also moved to dismiss the bill for the want of equity. The complainant moved to strike the pleas of the respondent from the file, because they were not verified by affidavit. The chancellor overruled the demurrers to the bill, and upon the submission of the cause upon the pleadings and proof decreed that the complainant was entitled to the relief prayed for. The respondent appeals, and assigns as error the interlocutory decree of the chancellor overruling the demurrers, and the final decree granting the complainant the relief prayed for.

A. A Hurst ...