Truss v. Miller

• Decision Date: 07 December 1897
• Citation: 116 Ala. 494,22 So. 863
• Parties: TRUSS ET AL. v. MILLER ET AL.
• Court: Alabama Supreme Court

22 So. 863

116 Ala. 494

TRUSS ET AL. v. MILLER ET AL.

Supreme Court of Alabama

December 7, 1897

Appeal from chancery court, Jefferson county; Thomas Cobbs Chancellor.

Bill by John W. Miller against C. C. Truss, P. P. Clarkson, and another, to subject land to the payment of certain liens. From a decree for plaintiff, defendants Truss and Clarkson appeal. Affirmed.

The original bill in this case was filed by the appellee, J. W Miller, against the appellants, C. C. Truss and P. P Clarkson, on April 1, 1893. The averments of the original bill disclosed the following facts: Miller and Clarkson, on the 3d day of December, 1886, purchased from one W. H Williams, each purchasing an undivided one-half interest certain specifically described land. Not paying all the purchase money in cash, they gave their promissory note to Williams for the balance, to wit, $1,812.50, bearing same date as day of purchase, the 3d day of December, 1886, and payable 12 months after date. This promissory note was secured by a mortgage executed by Miller and Clarkson to Williams on said land, and which was filed for record on the 8th day of December, 1886. Miller, on the 31st day of January, 1887, purchased said note from Williams, paying him for the same a sum of money, which, with interest to day of maturity of said note, amounted to $1,812.50, and said note and mortgage became and were personal property of Miller, and Clarkson knew of Miller's said purchase of said note at the time it was made. On the 23d day of April, 1887, Miller and Clarkson and wives sold and conveyed, by deed, to one W J. Bass, an undivided one-third interest in said land. Bass, not paying all the purchase money in cash, gave his note for the balance, to wit, $604.17, which note described the land on its face, and in and by which Miller and Clarkson reserved a vendor's lien on said land so purchased by Bass. Bass failed to pay any part of his said note when it fell due, and has never paid any part of it, and has since died, leaving his estate insolvent. After said sale and conveyance to Bass by Miller and Clarkson, one Truss recovered a judgment at law against Bass, had execution issued thereon, and placed in the hands of the sheriff of Jefferson county; which execution the sheriff levied upon Bass' said interest in said land, and sold the same, as such sheriff, on the second Monday in September, 1890, and at said sheriff's sale Truss became the purchaser of Bass' said interest, and the sheriff made him a deed on the 9th day of September, 1890, which was duly recorded. Truss was informed, before his said judgment was rendered against Bass, of the existence of said mortgage to Williams, and of the fact that Bass had not paid his said note. Truss did not pay out any money as such purchaser, except the costs and expenses of his said suit against Bass, but credited his said judgment with the amount bid by him, less the said costs and expenses. On the 23d day of January, 1888, Clarkson paid Miller $610.95 on their said note originally due to Williams. The prayer was for an accounting and contribution between Miller and Clarkson, and, in default of payment by Clarkson of the amount found to be due Miller by Clarkson, that the Williams mortgage be foreclosed; that Truss be declared not to be a bona fide purchaser without notice; and that Bass' interest in said land, so purchased by Truss, be held liable for amount due by Bass on his said note. Truss is required by the footnote to answer under oath. Truss and Clarkson filed, respectively, demurrers to the original bill, setting up as a ground of demurrer that the allegations of the bill showed that the Williams mortgage had been paid by Miller, who owed it, and the prayer was to foreclose a mortgage which had been paid off. On the 13th day of February, 1894, Miller filed an amendment to his original bill, in and by which he alleges, in regard to the purchase of the Williams note, that he purchased the same, and paid in cash for said note, on the 31st of January, 1887, the sum of $1,595, and thereby extinguished said note; that he was entitled thereby to contribution from Clarkson in the sum of $906.75, with interest from the 3d of December, 1887, the date of the maturity of the Williams note; and that Clarkson knew of and consented to the said purchase of the Williams note by Miller. The allegations of the original bill in regard to the purchase of the Williams note were stricken out by the amendment. In the amendment Miller alleged, in regard to the knowledge of Truss of the vendor's lien held by Miller and Clarkson on the Bass interest, the same that was averred in the original bill, except he struck out by this amendment all allegations concerning notice by Truss of the mortgage due by Miller and Clarkson to Williams, and under which, in the original bill, he sought to hold Truss; thus relying, in so far as Truss is concerned, wholly upon the vendor's lien, and not at all upon the mortgage. The language of section 7 of the amended bill was as follows: "That defendant Truss was fully informed of the fact that said Bass had not paid for the interest in said lands which was about to be sold under said execution and levy, and that said defendant Truss did not pay out any money for or on account of said purchase, except the costs and expenses of said suit, but credited the judgment with the amount bid by him for said property, less the costs and expenses paid by him as aforesaid; that Truss was not a bona fide purchaser, without notice of said Bass' interest in said property, and purchased with full knowledge that said Bass had not paid for said interest in said property." In the amended bill the complainant further alleged, in regard to contribution from Clarkson, the following, in addition to what is alleged in the original bill: That Clarkson is liable to contribution for one-half paid by Miller, with interest from maturity of the note so paid by him, and is not released by the payment of the $610.95; that Clarkson is liable for one-half, with interest, of the amount of the Bass note, unless the amount be realized from the sale of the Bass interest in said land. The prayer of the amended bill is as follows: "That an account be stated to ascertain what is due and owing to complainant by reason of the payment made by him to said W. H. Williams, as is set forth in paragraph 4 of this bill, as hereinbefore amended; and that your honor would make a decree thereon ascertaining and adjusting the respective rights and equities of the parties to this suit; and would decree that said defendant Truss is not a bona fide purchaser for value, without notice of said Bass' interest in said lands; and decree that the interest bought by said Bass from orator and defendant Clarkson, and which is not claimed by defendant Truss as and for his own property by virtue of said sheriff's deed as aforesaid, was bought by said Truss subject to the vendor's lien thereon; and is liable for the amount due from said Bass for the unpaid purchase money therefor; and that, unless said promissory note be paid off within a time to be fixed by your honor, the said one-third interest in said lands may be sold to pay off said debt; and the said defendant Clarkson may be liable to pay to complainant all or any portion of said sum so found to be due him (orator) as aforesaid, and which may not be paid off by proceeds arising from the sale hereinbefore prayed for." To the amended bill the defendant Truss demurred, assigning the following grounds: "(1) That Clarkson ought to be joined as a complainant; (2) that the bill as amended is a total departure from the original bill; (3) that the bill as amended is multifarious, in that it seeks to enforce a vendor's lien against Truss and contribution against Clarkson; (4) misjoinder of parties defendant for same reason; (5) Bass' personal representative should be made a party defendant." The defendant Clarkson demurred to the amended bill upon the following grounds: "(1) That the bill as amended is a total departure from the original bill; (2) that Miller has an adequate remedy at law against Clarkson; (3) mutifarious, as it seeks to foreclose a vendor's lien against Truss, and a contribution against Clarkson; (4) no equity in the bill as amended, because Miller seeks to recover from Clarkson one-half of the Williams note, and not one-half of what Miller paid; (6) because the bill fails to aver how much Miller has paid, or when he paid it, to discharge the Williams note." The court overruled all the grounds of demurrer of each of the defendants, except the fifth ground of the demurrer interposed by Truss. Thereupon the defendant amended his bill by making the administrator of the estate of W. J. Bass, deceased, a party defendant. Truss filed a sworn answer, as required by the bill, in which he denied any knowledge as to the business matters between the complainant and the defendant Clarkson on the one hand and Williams on the other. He further averred in his answer that he obtained judgment against W. J. Bass; that execution was issued thereon, levied upon Bass' interest in the land in controversy, and such interest was sold, at which sale he (Truss) became the purchaser; that he never had any knowledge or information, prior to the filing of this bill, that Bass had not paid in full for his interest in said land, or that the complainant Clarkson claimed a vendor's lien on said interest; that the deed which was executed by Miller and Clarkson to Bass, conveying an undivided one-third interest in said land, was signed by Miller and Clarkson and their wives, was a warranty deed, and was on file in the probate office at the time he recovered his said judgment against Bass, and at the time of the levy of the execution and sale thereunder; that he (Tr...