Taylor v. Newton

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J.
• Citation: Taylor v. Newton, 152 Ala. 459, 44 So. 583 (Ala. 1907)
• Decision Date: 02 July 1907
• Parties: TAYLOR v. NEWTON ET AL.

44 So. 583

152 Ala. 459

TAYLOR v. NEWTON ET AL.

Supreme Court of Alabama

July 2, 1907

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

Suit by W. R. Taylor against E. D. Newton and others. From a decree dismissing the bill on demurrer, complainant appeals. Reversed and rendered.

Tyson C.J., and Simpson and Denson, JJ., dissenting.

This was a bill filed by W. R. Taylor against Edwin D. Newton, J H. Baird, and Edwin R. Freeman, as individuals and as partners, and the Hunnicutt-Neal Lumber Company. The case made by the bill is that Edwin Newton executed and delivered to Thomas J. Adams a certain paper writing in the following language:

"Savannah Ga., July 28, 1903.

"To All Whom It may Concern: This is to certify that I have this day--the 28th of July 1903--given an option on all of my land in Tallapoosa county, Alabama, to Thomas J. Adams, of Montgomery, Ala., said option to last for twelve months from this date.

"[Signed]

Edwin D. Newton, M. D.

"I agree to take $8,000 in cash for all of my lands in Tallapoosa county, Alabama.

"Edwin D. Newton.

"Written and delivered in person to the said Thomas J. Adams in the city of Savannah, Ga., on the 28th day of July, 1903.

"E. D. N."

It is then alleged that, while in possession and claiming to own certain lands described in the bill, the said Newton executed and delivered the above agreement to the said Adams; that at that time he owned no other lands in Tallapoosa county, Ala., except the lands described in the bill; and that the land described in the bill was the land covered by and referred to in said option. It is averred that prior to the 21st day of May, 1904, the said Adams sold and transferred to Taylor the option above set out, and that Taylor on the 21st day of May, 1904, mailed the following check, to wit:

"$100.00

New Orleans, La., May 21, 1904.

"Providence Bank & Trust Co.: Pay to the order of E. D. Newton, M. D., $100.00 earnest deposit on account to bind purchase 1,600 acres of land as per options to T. J. Adams expiring July 28, 1904.

"William R. Taylor."

It is alleged that Newton received said check, indorsed the same, and collected the money thereon, and has kept the same thus paid as a part of the purchase money of said lands. It is then averred that at the time Taylor paid the said Newton the $100 he notified the said Newton that he would accept the said lands as per the Adams option, and notified him that the said $100 payment was made to bind the trade and paid as part of the purchase money, and that the said Newton accepted the same. It is alleged that before the expiration of the option Taylor notified Newton that he was ready and willing to accept the property and pay for the same according to the terms of the option, and pay the balance of the purchase money, if said Newton would furnish Taylor an abstract of title to the land, or show Taylor the title deeds, showing that Newton had a good title to the land, or that the lands were free from incumbrances, but that Newton failed and refused to furnish an abstract of title, or allow him to see the deeds to said land, and that at that time there was nothing on the records of Tallapoosa county showing that the lands belonged to said Newton, except a mortgage outstanding and unpaid, given on the lands, or a part of the same, by the said E. D. Newton. It is alleged that long after the payment of the $100 on said land, and after his request to see the title of the said Newton, deeds of conveyance to said Newton to said lands were put upon the records of Tallapoosa county, showing that the title was in said Newton to said lands and that the mortgage had been satisfied. It is then averred that Taylor is ready, willing, and able to take said lands and pay the purchase price therefor, and there is an offer by Taylor to submit himself to the jurisdiction of the court and to take the lands and pay for the same. It is then averred that Baird and Freeman claimed to have purchased these lands on or about the 8th day of March, 1905, from the said Newton, and that they had received a deed for the same; and it is averred that at the time and before the purchase the said Baird and Freeman well knew and had notice of the fact that orator held the option that had been given by Newton to said Adams on said land, and that he had paid part of the purchase money, and was ready and willing to pay the balance. It is then alleged that Baird and Freeman executed a deed to said lands to the Hunnicutt-Neal Lumber Company in November, 1905, and put them in possession, and the same notice and knowledge is alleged to have existed as to orator's option, etc. The prayer is for a specific performance by Newton and a divestiture of title out of the other defendants.

Numerous demurrers were assigned, and the cause was submitted for decree on these demurrers, which it is unnecessary to set out, and on motion to dismiss for want of equity. The chancellor dismissed the bill for want of equity, and sustained the demurrers...