Turner v. Williams

• Decision Date: 24 March 1938
• Docket Number: 1 Div. 999.
• Parties: TURNER v. WILLIAMS ET AL.
• Court: Alabama Supreme Court

180 So. 95

235 Ala. 502

TURNER v. WILLIAMS ET AL.

1 Div. 999.

Supreme Court of Alabama

March 24, 1938

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

Action in assumpsit and for breach of covenant by Loraine C Williams and Charles A. Cunningham against J. Tyler Turner. From a judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Jere Austill and Harry T. Smith & Caffey, all of Mobile, for appellant.

James E. Duggan and Chas. A. Cunningham, both of Mobile, for appellees.

KNIGHT Justice.

The plaintiffs, appellees here, stated their cause of action against the defendant, appellant, in four counts; two common counts for money had and received, and two for breach of contract under seal.

The defendant, among other special pleas, pleaded the statute of limitations of six years. Code 1923, § 8944. There was no demurrer to any of the pleas.

The language of plea 4 is: "That the action of the plaintiffs is barred by the statute of limitations of six years."

If counts 3 and 4 state a cause of action for breach of a written contract under seal, then, confessedly, the action would not be barred by the statute of limitations of six years, but the limitation would be ten years. Code, § 8943.

This court has repeatedly held that when issue is joined on an immaterial plea, without objection to its sufficiency, and its averments are proved, the defendant is entitled to the general charge. McGhee & Fink v. Reynolds, 117 Ala 413, 23 So. 68; Taylor v. Smith, 104 Ala. 537, 16 So. 629. However, as a matter of law, if counts 3 and 4 stated a cause of action for the breach of a contract under seal, the plea was not proven, as such actions are not barred in six years. Rasco et al. v. Jefferson, 142 Ala 705, 38 So. 246. The Code authorizes the defendant to plead a mere conclusion, and if the facts of the case do not support the conclusion, the plea is not sustained.

The real, in fact, the only question here argued for reversal of the judgment relates to the action of the court in refusing to give, at the written request of the defendant, the general affirmative charge in his behalf. This, upon the theory that the plaintiffs' cause of action, if they ever in fact had a cause of action against the defendant, was for a breach of a simple contract, within the statute of limitations of six years. A review of the evidence is, therefore, necessary to a proper understanding of the case, and of the conclusion here reached.

We will first state the evidence as it appears in the record without conflict, and then later state the tendencies of the evidence of the respective parties, where there are conflicts.

It appears that Mrs. Ella C. Robinson became indebted to the defendant in 1917 in the sum of $7,500, for borrowed money, and to secure the loan she and her husband, Dr. C. P. Robinson, executed to the defendant, on October 30, 1917, a mortgage on certain described real estate in the city of Mobile, Ala.

In the year 1919, while said mortgage was still outstanding and unpaid, Mrs. Ella C. Robinson died, leaving a last will and testament, which was duly admitted to probate and record in the probate court of Mobile county, Ala., on the 11th day of February, 1919. By her will, Mrs. Robinson devised a life estate in said property to her husband, Dr. Robinson, with remainder in fee to the plaintiffs. Thereafter, and before the foreclosure of said mortgage, Dr. Robinson, the life tenant, sold and conveyed "all of his right, title, interest and claim" in and to said mortgaged property to the remaindermen, viz., the plaintiffs in this cause.

It appears that at some time prior to the foreclosure, a payment of $2,500 was made on the mortgage indebtedness.

On May 2, 1927, the mortgage indebtedness not having been paid, and the mortgagors being in default, the defendant sold the property, after due notice by advertisement, under the power of sale contained in the mortgage, and at this sale the defendant became the purchaser at and for the sum of $7,390.83.

The mortgage contained the following provision: "And the mortgagors hereby vest the mortgagee with full power and authority, upon the happening of a default in the payment of either of said principal notes, or of any installment of interest thereon, or upon any default in the performance of any of the covenants and agreements herein contained, to sell said property at public outcry in the city of Mobile, for cash to the highest bidder, after giving ten days notice of the time and place of sale by an advertisement published in three different issues of a newspaper published in the city of Mobile; to make proper conveyance to the purchaser; and the proceeds of said sale to apply first, to the payment of the costs of said sale, including a reasonable attorney's fee; second, to the payment of the amount of said principal notes, whether due or not, with the unpaid interest thereon to the date of sale, and any amount that may be due the mortgagee by virtue of any of the special liens herein declared; and, third, the balance, if any to pay over to the said Ella C. Robinson."

The mortgage concluded as follows:

"In witness whereof, the mortgagors do hereunto set their hands and seals this the 30th day of October, 1917.

"Ella C. Robinson [Seal.]

"C. P. Robinson [Seal.]"

The basis of plaintiffs' claim, as disclosed by their testimony, was that there was due on the mortgage, at the time of the foreclosure, only the sum of $5,954.55, and that the difference between the purchase price and the amount of the debt due represented a surplus, realized from the foreclosure, to which plaintiffs, as holders of the equity of redemption, were entitled.

The defendant, on the other hand, denied that the indebtedness secured by the mortgage was only $5,954.55, and claimed that the amount which he bid at the foreclosure sale, viz., $7,390.82, was the exact amount due under, and secured by, the mortgage, so that there was no surplus. The basis of the difference between the parties was, in the main, the reasonable costs of certain repairs that Turner claimed he had made upon the property, or for which he had paid, as provided in the mortgage. There was a contention also as to the amount of a reasonable attorney's fee that the defendant should be allowed in having the property sold under the mortgage.

At the conclusion of the evidence, the defendant requested in writing the general affirmative charge in his behalf, based upon the theory that the foreclosure sale was had on May 2, 1927, and the suit was not filed until March 14, 1936, which was more than eight years after the accrual of plaintiffs' alleged cause of action.

The court refused to give the general affirmative charge for defendant, as requested. The trial resulted in verdict for plaintiffs for $900, and judgment was duly entered thereon.

Was the defendant, under the evidence, entitled to the general affirmative charge? This is the only question here presented for determination.

The appellant, in brief, presents the following questions, which he insists should be answered in the negative: "(1) Whether a mortgage, signed only by the mortgagors and not by the mortgagee, is a sealed instrument as against the mortgagee, when it does not purport to be signed or sealed by the mortgagee. (2) Whether, if it should be construed as a sealed instrument, as between the mortgagors and the mortgagee, it is a sealed instrument, obligating the mortgagee to pay over any surplus on purchase price to third persons to whom the property has been devised or otherwise conveyed."

The questions here presented have not been given the same answer by the courts. There is some contrariety of holdings, but we are of the opinion that the great weight of authority supports the proposition that the covenant embodied in the mortgage to pay over any surplus of the proceeds, over and above the amount of the...