Wilson v. McKleroy

• Decision Date: 14 April 1921
• Docket Number: 7 Div. 175
• Citation: 89 So. 584,206 Ala. 342
• Parties: WILSON v. McKLEROY.
• Court: Alabama Supreme Court

89 So. 584

206 Ala. 342

WILSON v. McKLEROY.

7 Div. 175

Supreme Court of Alabama

April 14, 1921

Rehearing Denied June 30, 1921

Appeal from Circuit Court, Calhoun County; W.J. Martin, Judge.

Action by W.C. Wilson against Mrs. Susan N. McKleroy, for damages for breach of contract. Judgment for the defendant on the pleading, and plaintiff appeals. Affirmed.

Gardner J., dissenting.

Legal title to a minor's land is not in his guardian but in the minor.

The following are the pleadings in the case:

"(1) The plaintiff claims of the defendant $5,600 together with the interest thereon from March 10, 1920, due from defendant to the plaintiff by a contract executed between the plaintiff and the defendant on, to wit, December 31, 1919, a copy of which said contract is hereto attached marked 'Exhibit A,' and made a part hereof as if fully and completely set out herein, and plaintiff avers that in pursuance of said contract the said property therein referred to was sold at public outcry; that there was a higher bid therefor than $22,500, a bid of $28,100, which sum was bid by the plaintiff, and the plaintiff became the purchaser of said property at said sum; that said sale was reported to and confirmed by said court on, to wit, March 10 1920, and in consequence of said bid and said confirmation of said sale this defendant has become indebted to the plaintiff in the sum of $5,600, together with the interest thereon from the confirmation of said sale, which said sum is past due and unpaid.

"(2) Plaintiff claims of the defendant the sum of, to wit, $5,600, together with the interest thereon from March 10, 1920, for that Wm. H. McKleroy died testate leaving a last will and testament, one item of which said will--which has been duly probated in the probate court of Calhoun county, Ala., the county said decedent resided--was as follows, to wit:

"Item 9. 'My home known as the McKleroy consisting of ten (10) lots and the residence thereon, between Wilmer avenue and Quintard avenue, immediately north of Sixteenth street, in Anniston, Alabama, I give and devise to my son William Henry McKleroy, Jr., who I hereby direct to permit his mother to use and occupy said homestead as her residence during her lifetime.'

"And plaintiff avers that upon the probate of said will letters testamentary thereon issued to W.A. Davis and this defendant, and thereafter this defendant was appointed the guardian of Wm. Henry McKleroy, Jr., who was the child of said decedent and the child of this defendant, and thereafter whilst the defendant was acting as such coexecutor, and whilst defendant was acting as such guardian and whilst the defendant

and her said minor child were occupying the said property, the said defendant undertook to procure a purchaser for said property, and thereupon after sundry consultations and interviews this plaintiff agreed to buy said property at $22,500, which the defendant considered and which was in fact an advantageous price for said property, and thereupon the plaintiff and defendant made and executed a contract, a copy of which is hereto attached, marked 'Exhibit A' and made a part hereof as if more fully set forth herein, and thereafter the defendant procured said property to be sold by the court, and at said sale by the court the plaintiff became and was the purchaser thereof at and for the sum of $28,100; that said sale was reported to and confirmed by the court, and that it was necessary for the plaintiff to bid said sum to buy said property. Wherefore plaintiff says that defendant is indebted to plaintiff in the sum of $5,600, together with the interest thereon from the confirmation of said sale on, to wit, March 10, 1920.

"(3) The plaintiff refers to and adopts as a part of this count all of count 2 hereinabove down to and including the words 'it was necessary for the plaintiff to bid said sum to buy said property,' and adds thereto as a part thereof the following words of averment: That it became so necessary for the plaintiff to bid said sum in consequence of the acts and conduct of the defendant, who, knowing that the plaintiff was relying upon said contract and relying upon this defendant abiding by and performing the same, procured irresponsible persons to bid at said sale and run up the price of said property to force and compel plaintiff to bid more than $22,500 at said sale, and that such person did, at the instance and upon the solicitation of this defendant, appear at said sale and bid in excess of said sum of $22,500, and bid, to wit $28,000 for said property; that such persons so bidding were irresponsible, without means, could not have complied with the contract of purchase had they secured said property, and had no intention of buying said property, but were acting in the interest of and upon the solicitation of this defendant to artificially run up the price of said property and force this plaintiff, who, to the knowledge of the defendant, was relying upon said contract, to bid more for said property than it would bring at a public sale properly conducted among honest and legally responsible bidders. And plaintiff avers that said sale was reported to and confirmed by the court, and that in consequence of the facts herein recited this defendant has become indebted to this plaintiff in said sum of $5,600, together with the interest thereon since the confirmation of said sale, on, to wit, the 10th day of March, 1920.

"(4) Plaintiff claims of the defendant the sum of, to wit, $5,600, and the interest thereon from February 26, 1920, for that this defendant, as the guardian of Wm. Henry McKleroy, Jr., caused to be sold at public outcry to the highest bidder for cash, before the courthouse door of Calhoun county, Ala., in pursuance of a decree of the chancery court of Calhoun county, Ala., and on, to wit, the 26th day of February, 1920, certain real estate situated in Calhoun county, Ala. On and prior to the day of this sale the defendant well knew that the plaintiff would bid at said sale the sum of $22,500, and such sum in addition thereto as was necessary to purchase said property at said sale, and knowing such facts this defendant conspired with sundry irresponsible persons, without means, who could not have complied with the contract of purchase had they secured said property, to defraud this plaintiff by artificially puffing or bidding up the price of said property at said sale who, in furtherance of such conspiracy, did appear at said sale and bid thereon the sum of $28,000 after plaintiff had bid $22,500 for said property; that such persons were known to this defendant but unknown to this plaintiff to be irresponsible and unable to comply with said bid had said property been sold to them, and had no intention of complying with said bid or purchasing said property, and were wholly unable to comply with such sale, all of which facts were unknown to this plaintiff, and that by virtue of the said fraudulent conduct on the part of this defendant this plaintiff was compelled, and did, bid in order to obtain said property the sum of $28,100, whereby defendant was defrauded of the difference between the then reasonable market value of said property, to wit, $22,500, and the amount bid at said sale, to wit, $28,100.

Exhibit A.

"State of Alabama, Calhoun County:

"This agreement made and entered into on this 31st day of December, by and between Susan N. McKleroy, as guardian of Wm. H. McKleroy, Jr., a minor, and in her individual capacity, party of the first part, and Wm. C. Wilson, party of the second part, witnesseth:

"That whereas the party of the first part, as the guardian of the person and estate of Wm. H. McKleroy, Jr., desires to sell that certain property in the city of Anniston, Alabama, known as the Wm. H. McKleroy homestead; and

"Whereas, the party of the second part desires to purchase the same; and the parties hereto having agreed that the said property shall be sold to the party of the second part at and for the sum of twenty-two thousand five hundred ($22,500.00) dollars, payable as follows: Seventy-five hundred ($7,500.00) dollars cash upon the execution of a conveyance, and the balance in three annual installments of five thousand ($5,000.00) dollars each with interest, at the rate of six per cent. per annum, with the provision that the party of the second part shall have the privilege of paying any one or more of said installments before maturity.

"Now, therefore, in consideration of the premises and in consideration of the agreement and promise of the second party to pay twenty-two thousand

and five hundred ($22,500.00) dollars for said property, the party of the first part does hereby covenant and agree with the party of the second part that she will sell or cause to be sold to said party of the second part said property herein described for the sum of twenty-two thousand five hundred ($22,500.00) dollars as above stated; and that if at the sale of said property at public outcry there should be a higher bid than twenty-two thousand five hundred ($22,500.00) dollars then she will pay to the said party of the second part the amount of said bid in excess of said sum of twenty-two thousand five hundred ($22,500.00) dollars such payment to be made by her on or before the confirmation of the sale.

"In witness whereof said parties of the first and second part hereunto set their hands and seals in duplicate on the day and year herein first above written. Susan N. McKleroy, as Guardian of Wm. H. McKleroy, Jr. W.C. Wilson. Attest: Rosedale."

Appellee interposed three sets of demurrers as follows:

"Now comes the defendant, and separately and severally demurs to the plaintiff's complaint, and to each count thereof, and separately and severally assigns thereto the following:

"Because said complaint

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