State ex rel. Little v. Laurendine

• Decision Date: 04 April 1940
• Docket Number: 1 Div. 88.
• Citation: State ex rel. Little v. Laurendine, 196 So. 278, 239 Ala. 620 (Ala. 1940)
• Parties: STATE EX REL. LITTLE, SUPERINTENDENT OF BANKS, v. LAURENDINE.
• Court: Alabama Supreme Court

196 So. 278

239 Ala. 620

STATE EX REL. LITTLE, SUPERINTENDENT OF BANKS, v. LAURENDINE.

1 Div. 88.

Supreme Court of Alabama

April 4, 1940

Rehearing Denied June 6, 1940.

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

Proceeding in equity by the State of Alabama, on the relation of James B. Little, as Superintendent of Banks, liquidating the Peoples Bank of Mobile, to sell certain real estate as a part of the assets of said Bank, wherein P. B. Laurendine intervened and filed a petition opposing the sale and propounding his claim as a creditor of the Bank. From a decree overruling a demurrer to the petition of intervention complainant appeals.

Affirmed.

THOMAS J., dissenting and THOMAS, J., and GARDNER, C.J., dissenting on rehearing.

Outlaw & Seale and Vincent F. Kilborn, all of Mobile, for appellant.

Wm. V McDermott and Harry T. Smith & Caffey, all of Mobile, for appellee.

PER CURIAM.

The averments of the petition of Laurendine, as last amended show the creation of an express trust in the Barrett property ultimately conveyed to the Peoples Bank of Mobile, in consummation of the joint adventure participated in by Laurendine on the one part and the bank through its president on the other to acquire said property, and the petitioner is entitled to participate in the profits arising therefrom after reimbursing the bank for the money advanced, with interest, and other lawful charges against said property, and therefore entitled to an accounting as prayed in said petition.

The demurrer to the petition was therefore properly overruled, and the decree of the circuit court is due to be affirmed.

Affirmed.

All the Justices concur, except THOMAS, J., who dissents.

THOMAS Justice (dissenting).

The liquidator came into possession of an interest in the land in question in the City of Mobile and duly sought to sell the same for $2,500. Laurendine objected to the sale on the grounds of inadequacy of the offer of purchase price, and also prayed for an accounting.

The petition for leave to intervene contained the claim made in July 19, 1927, to the superintendent of banks, which, among other things, averred:

"One Thomas C. Barrett, who died prior to June 25th, 1919, was at the time of his death indebted to the Peoples Bank of Mobile, Alabama, in a considerable sum. Subsequent to his death and prior to June 25, 1919 I entered into an agreement with Florence E. Barrett, the widow of the said Thomas C. Barrett, and who was his sole devisee and legatee under his last will and testament, by the terms of which I agreed to purchase all of the real estate belonging to said Estate for the sum of $2,250.00 and the assumption by me of all of the debts of the said Thomas C. Barrett. Thereafter Mr. Alfred L. Staples as President of the Peoples Bank stated that if I would give the said bank the benefit of the contract which I had with Mrs. Barrett that the Bank would put up the money to pay Mrs. Barrett and also with which to pay the creditors of the said Thomas C. Barrett; that I would be authorized to manage the property and out of the rents collected and the proceeds of sale of the property the bank was to be paid all monies advanced by it, together with interest, and after these amounts had been paid any profit remaining was to be equally divided between the bank and me.

"On June 25, 1919, this agreement was then made in writing between me and the said Peoples Bank of Mobile, through Mr. Alfred L. Staples as its President, a copy of said written agreement being hereto attached and made a part of this claim as if fully set out herein.

"Pursuant to the agreement Mrs. Florence E. Barrett individually and as Executrix of the last will and testament of Thomas C. Barrett, deceased, on June 29, 1919, conveyed all of the property belonging to the Estate of the said Thomas C. Barrett to Alfred L. Staples, a copy of which is hereby attached marked 'Exhibit B' and made a part of this proof of claim as if fully set out herein.

"Subsequently, Mr. Alfred L. Staples conveyed to the said Peoples Bank of Mobile all of the property described in the said deed from Florence E. Barrett."

This claim by petitioner was filed pursuant to Sections 6310 and 6312 et seq. of the Code, and fixed the status of Laurendine's cause of action against the bank being liquidated and affecting the properties in question. Cooke v. Little, as Supt., Ala.Sup., 194 So. 853; Jackson v. Whitesell, 213 Ala. 369, 104 So. 662; Williams, Supt., v. Central Hanover Bank & Trust Co., 229 Ala. 646, 159 So. 92.

To this petition the demurrer of James B. Little, as Superintendent of Banks, was sustained.

The amended petition, to which demurrer of the Superintendent of Banks was overruled, contained, among other things, the following averments:

"Petitioner entered into an agreement in the early part of June, 1919, with one Mrs. Florence E. Barrett whereby petitioner agreed to purchase through and from her, and she agreed to sell and convey to petitioner, all property whether real, personal and mixed, in the County of Mobile, Alabama, owned individually by said Mrs. Barrett or acquired by her as the Executrix and sole devisee under the last will and testament of her deceased husband Thomas C. Barrett; the consideration moving to said Mrs. Barrett to be the sum of $2,250.00 in cash and the assumption and payment by petitioner of all the debts of the estate of said Thomas C. Barrett, deceased. With this agreement, petitioner went to said Peoples Bank, which was then engaged in the general banking business in the City and County of Mobile, Alabama, to borrow the necessary money, towit, approximately $10,000.00, to enable him to carry out said agreement. Mr. A. L. Staples, then President of said Bank and the officer thereof to whom petitioner talked to secure the loan, and then and there acting within the line and scope of his authority as such officer of the Peoples Bank, stated to petitioner that if petitioner would give said bank a joint benefit in said Agreement or contract that petitioner had with Mrs. Barrett that his said bank would put up sufficient money to pay Mrs. Barrett and the creditors of her said husband's estate, and to clear the property of encumbrances, with the understanding that out of the rents collected and out of the proceeds of the sale of the said properties, said bank was to be first repaid all monies advanced by it, together with interest and any charges that might arise against the properties, after which any profits remaining were to be equally divided between said bank and the petitioner. And petitioner avers that he agreed to this proposition and that said Peoples Bank acting by and through its said President A. L. Staples, confirmed said agreement by writing in words and figures as follows:--

" 'Peoples Bank of Mobile

" 'Office of the President

" 'A. L.Staples

" 'Mobile, Alabama

" 'June 25, 1919.

" 'Mr. P. B. Laurendine

" 'Mobile, Alabama

" 'Dear Sir:--

" 'Confirming our conversation to-day I beg to advise that in consideration of our joining in the purchase of the property of T. C. Barrett, deceased, and Florence E. Barrett individually, we will put up all money that is necessary to clear the property from encumbrances, and we will then sell said property to the best advantage, proceeds of all sales to be applied,

" 'First: To the return of principal that we have put into the property, together with all interest thereon. Second: After the payment of all charges of any kind that might arise against the property, any profit resulting therefrom to be divided equally between us.

" 'Yours very truly,

" '(signed) A. L. Staples

" 'Above proposition hereby accepted,

" '(signed) P. B. Laurendine.'

"Under said agreement with said Bank, the necessary purchase money was advanced to petitioner by said bank to carry out petitioner's agreement of purchase with said Mrs. Barrett and on to-wit June 26, 1919, petitioner paid to said Mrs. Barrett in cash the sum of $2,250.00 and she did on said date execute and deliver unto said Alfred L. Staples a deed conveying all real, personal and mixed property owned by her in Mobile County, Alabama, individually and as Executrix of the last will and testament of Thomas C. Barrett, her deceased husband, and said Alfred L. Staples thereupon took and held the legal title to said property in trust for said Peoples Bank and petitioner and subject to the terms of the aforesaid agreement until to-wit October 17, 1924, when the said Alfred L. Staples and wife, by deed dated October 17, 1924, conveyed the legal title to the identical property described in the Barrett-Staples deed above referred to, unto said Peoples Bank, which bank thereupon held said legal title to said property in trust for itself and petitioner, subject to the terms of the aforesaid agreement. * *

"Petitioner further avers that under and by virtue of the agreement entered into on to-wit said June 25, 1919, between petitioner and said Peoples Bank by and through its President Staples, your petitioner is entitled to one-half of the proceeds of the rentals and sales of all properties, real, personal and mixed described in and covered by said Barrett-Staples deed and subsequently conveyed by said Staples to said Peoples Bank."

The demurrer to the bill challenged the conclusions of the pleader, and that,

"It affirmatively appears from the petition, as amended, that no consideration other than a void consideration was furnished by P. B. Laurendine by the contract entered into between Laurendine and A. L. Staples, as President of the Peoples Bank of Mobile. * * *

"For aught that appears, Mrs. Florence E. Barrett, as executor of the Estate of Thomas C. Barrett, had no authority to enter into such...