Wiggs v. Winn

• Citation: 29 So. 96,127 Ala. 621
• Parties: WIGGS v. WINN.
• Decision Date: 28 November 1900
• Court: Supreme Court of Alabama

29 So. 96

127 Ala. 621

WIGGS v. WINN.

Supreme Court of Alabama

November 28, 1900

Appeal from chancery court, Jefferson county; John C. Carmichael Judge.

Suit by J. A. Wiggs, Jr., against Chester W. Winn to compel a conveyance of property held in trust for the plaintiff. From a judgment in favor of the defendant, the plaintiff appeals. Reversed.

The bill, as amended, alleged: That on the 7th day of January 1897, and several years prior thereto, complainant resided in Birmingham, Ala. That during this time, and until a few days prior to the filing of the bill, the defendant, C. W. Winn was his confidential friend and agent, in whom he placed the most implicit confidence in the management of his business which was very largely confided to him. That on the 7th day of January, 1897, complainant became indebted to one Ernst in the sum of $1,750, for which he executed his note, indorsed by W. G. Robinson, secured by mortgage on the lot in controversy, with a power of sale, payable at 90 days. Complainant not being able to pay said note at maturity, the property was sold under the power contained in said mortgage on the 26th day of July, 1897, and was purchased by Leo K. Steiner for the sum of $1,400, leaving a considerable balance unpaid, of which said Steiner had become and was then the owner. After said sale, Leo K. Steiner took possession of said property. Some time prior to the sale complainant moved to the territory of New Mexico, where he has ever since resided, leaving the defendant, his agent, in the management of his business. After his departure he instructed the defendant to raise the money to pay off the mortgage debt, and for that purpose to mortgage, sell, or otherwise incumber the property. Prior to the sale under the Ernst mortgage, defendant, Winn, acting as complainant's agent and on his behalf, made repeated efforts to raise money to pay off said debt. To facilitate this purpose, complainant executed to Winn a deed for the property, reciting a consideration of $2,000, with the understanding and agreement that Winn was to use said lot for the purpose only of raising money to redeem it from the sale under the Ernst mortgage. That pursuant to said understanding said Winn on the 7th day of September, 1897, made an agreement with Leo K. Steiner, who had bought the property at foreclosure sale and become the owner of the balance due on the mortgage debt, to redeem (for and on behalf of complainant) the lot by paying $150 cash and $144.73 in 30 days, $145.73 in 60 days, and $146.73 in 90 days, and $1,500 at any time within 2 years from the date of the mortgage. The small deferred payments were evidenced by the notes of the Robinson-Wiggs Foundry & Machine Company, a corporation mainly owned and controlled by complainant, and were indorsed by W. G. Robinson. Complainant, Wiggs, made the cash payment of $150, and also paid the small notes, until the amount necessary to redeem said property was on, to wit, May 4, 1899, $1,750. Of this complainant paid $500, and said Winn borrowed from one Massey for complainant $1,350, pursuant to said agreement, by mortgage on said property, which said last sum was used in paying the balance necessary to redeem said property, and certain taxes and other charges against the same. For the money so borrowed Winn executed to said Massey his notes and mortgage on said property to secure the same, all of which was done on behalf of complainant, whereupon the said Leo K. Steiner executed to said Winn a deed conveying said property to him in his own name. Said deed was made for and on his behalf, and said Winn holds said property in trust for complainant. At the time said property was thus redeemed, Winn was in possession of it under a lease from Leo K. Steiner, and remained in possession until about the 1st day of October, 1898, when he leased the same to James J. Banks, Esq., for one year from that date at $21 per month, payable monthly. This lease was made for complainant's benefit, but taken in the name of Winn. It was further averred in the bill, as amended, that on the redemption of said lot from said Steiner it became and was the duty of the defendant, Winn, to reconvey the same to him, but he fraudulently refused to do so; that the lot was worth largely more than the amount for which it was mortgaged, and that Winn, taking advantage of the fact that he held the legal title, was fraudulently endeavoring to sell said property in violation of his trust, without the knowledge or consent of complainant, and convert the proceeds of the sale to his own use; and that Winn is wholly insolvent. The prayer of the bill is that on final hearing the defendant Winn be required to reconvey the complainant the title to said property, subject to the mortgage made by him on the same, and for such other, further, and general relief as in equity he may be entitled to. The defendant, Winn, answering the bill, denies the material allegations thereof, except that the complainant conveyed the land described in the bill to him, and says that there was no written agreement whatsoever that he was to reconvey said land to the complainant, and that there was no written declaration whatever made by him that said land is held in trust for complainant. The other facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainant was not entitled to the specific relief prayed for in the bill, but held that as it appeared that, of the $2,200 of the purchase money paid for the property described in the bill, J. A. Wiggs, Jr., the complainant, contributed $550, which was used in the purchase of said property, a trust resulted in favor of the complainant in said property to the extent of the money so used, and decreed accordingly. From this decree the complainant appeals, and assigns the rendition thereof as error.

White & Howze, for appellant.

Banks & Selheimer, for appellee.

McCLELLAN C.J.

It is perfectly clear on the evidence in this case that Winn took a conveyance from Wiggs of a house and lot in trust for the grantor for the purpose of raising money on the property to redeem it from the purchaser under a pre-existing mortgage for the benefit of Wiggs, the grantor, and that everything that Winn has done in respect of the land, leaving out of view his final attempted repudiation...