Waller v. Janney

• Decision Date: 13 February 1894
• Citation: 102 Ala. 442,14 So. 876
• Parties: WALLER v. JANNEY ET AL.
• Court: Alabama Supreme Court

14 So. 876

102 Ala. 442

WALLER v. JANNEY ET AL.

Supreme Court of Alabama

February 13, 1894

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

Suit by William W. Waller, administrator de bonis non of Julia B Micou, deceased, against Janney & Cheney, to have an indebtedness due her declared a lien on certain property. From a decree refusing to grant the relief prayed complainant appeals. Reversed.

H. C Semple held the legal title to certain property. He had no personal interest in it whatever beyond his charges as trustee, all of which was known to Moses Bros. The sum of $4,250 was charged on this property in favor of Lucy B Micou. Moses Bros., proposing to buy a portion of this property, and knowing of the charge in favor of Lucy B Micou, offered Semple $10,000 for certain lots, and agreed to satisfy the purchase money as follows: By accounting with him (Semple) for the sum of $6,050, and by accounting with Lucy B. Micou, for Semple, for the sum of $3,950. These terms were accepted by Semple, and Moses Bros. paid him, or accounted to him for, the $6,050, and brought to him, from Lucy B. Micou, a receipt to Semple for $3,950, and on the delivery of this receipt Semple executed a warranty deed to the property to Moses Bros. Semple has received the full benefit of the payment of $3,950 to Lucy B. Micou. But the bill alleges, and the proof shows, that this sum was never paid in any manner to Lucy B. Micou, and this bill is filed to charge the property conveyed by Semple to Moses Bros. with the said sum of $3,950, so agreed to be paid by the purchasers to her. The bill, as originally filed, averred "that $3,950 of the consideration should be credited by said firm on the supposed indebtedness of said Lucy B. Micou to them, which understanding was carried out, said firm receiving a deed to said property from Semple, entering a credit of $3,950 to said Lucy B., and paying the balance of said consideration." And the original bill claimed that, as Lucy B. did not in fact owe Moses Bros. anything, and as there was no debt of hers to which this credit could be applied, the money was still due, and that she was entitled to a lien for its payment. This bill was demurred to on the ground that it did not show that money was to be paid, but only a credit entered, and that to decree a lien now for the payment of money would be making a contract for the parties. This demurrer was held good by the supreme court. The case is reported in 94 Ala. 476, 10 So. 421, under the name of Sayre v. Westcott. On the return of the cause to...