Troy v. Walter Bros.

• Decision Date: 01 May 1889
• Parties: TROY v. WALTER BROS. ET AL.
• Court: Alabama Supreme Court

6 So. 54

87 Ala. 233

TROY v. WALTER BROS. ET AL.

Supreme Court of Alabama

May 1, 1889

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

A bill by Walter Bros. and others, appellees, alleged that one Ferrell possessed in May, 1885, land in Montgomery county devised to him by his wife, with remainder to their children with full power in him to sell and convey the same; that in May, 1885, he sold the land to them for $1,800, to be paid in installments, for which they gave their notes. On August 13th of the same year, Ferrell executed and delivered to them a deed to the land, which was recorded the same day. The bill further alleges that at the time of the sale the land was rented out and in the possession of the tenants of said Ferrell, and by the terms of the contract of sale Ferrell was to receive the rent of that year. By an amendment to the bill it was averred that Ferrell, at the time of the sale notified the tenants thereof, and they thereafter recognized the appellees as the owners of the land. The bill also avers that at the time of the sale a suit was pending in the United States court at Montgomery against said Ferrell in favor of one Sweatman, and that on the 12th day of June, 1885, a judgment was obtained in that suit against the said lands by the marshal on September 14, 1885. The lands were sold under that execution, and, as is alleged in the bill, were purchased by the appellant, Troy. The bill further alleges that Ferrell had transferred the notes given to him for the purchase money of the land by Walter Bros.,-two of them to one J. T. May, and the other to a person unknown; and that May was seeking to enforce the payment of those he held by proceedings in equity and at law; and that appellees, being in possession, could not defend. The bill further alleged that by the purchase at the marshal's sale the appellant acquired the legal title, and hence the appellees could not defend against him at law. The prayer was for an injunction against May, and that the respective rights of the three several parties to the land be settled; and that, if the deed to appellees be held to have conveyed Ferrell's life-estate, then that May's notes be reduced to the extent of the value of that estate. To the original bill Troy, the appellant, answered, admitting substantially the allegations thereof, showing title in him, and setting up that by the deed he acquired Ferrell's life-estate. The answer of May to the bill raises no issue against appellant's rights under his deed, but it denies appellees' right to relief on the ground of negligence on their part, and on the ground that the abatement of the purchase money should be taken from the third note, which was transferred after he received his. Troy also demurred to the bill. The court overruled the demurrers, and held that appellant obtained no title as against appellees or May, upon the ground that the recognition by the tenants of appellees' title made them their tenants, and their possession was the...