Woolen v. Taylor
Citation | 249 Ala. 455,31 So.2d 320 |
Decision Date | 30 June 1947 |
Docket Number | 2 Div. 236. |
Parties | WOOLEN et al. v. TAYLOR. |
Court | Supreme Court of Alabama |
Rehearing Denied July 31, 1947.
M B. Grace, of Birmingham, for appellants.
W R. Withers and W. P. Gewin, both of Greensboro, for appellee.
The original bill in this case was filed June 28, 1940. This is the third appeal from rulings on demurrer to the bill as originally filed and as amended. On the first appeal the bill was treated as a 'bill to redeem and set aside foreclosure deed and for an accounting.' Woolen v. Taylor et al., 241 Ala 316, 317, 318, 2 So.2d 413, 414. The decree appealed from in that case was limited by the following statement in the decree: "After argument and after consideration the Court is of the opinion that the Bill as amended, in its present shape, is subject to those grounds of demurrer which raise the proposition that it does not appear from the Bill as amended, that the agreement alleged to have been made by the Respondents with the Complainant's attorney for redemption of the land involved in the suit was in writing; and is therefore void as being contrary to the statute of frauds." 241 Ala. at page 322, 2 So.2d at page 418.
The agreement referred to in that ruling related to a verbal contract or agreement between the purchaser at the foreclosure sale and the mortgagors to extend the time for redemption beyond the two years allowed by law for exercising the statutory right of redemption. On the authority of Griffin v. Coffey, 9 B.Mon., Ky., 452, 453, 50 Am.Dec. 519, it was held that such agreement was not within the statute of frauds. Griffin v. Coffey dealt with the right to redeem property sold under execution. The Kentucky court observed:
Griffin v. Coffey, 9 B.Mon. Ky., 453, 454, 50 Am.Dec. 519, 520, 521.
In a subsequent case, this court, speaking through the same justice who wrote the opinion on the first appeal, the following observation was made:
'In the case at bar no such fraud or deception is averred in the bill, and the facts and circumstances alleged refute such deception or fraud. * * *' Thompson v. Suttle, 244 Ala. 687, 690, 691, 15 So.2d 590, 592.
The second appeal was by the complainant from a decree sustaining the demurrers to the bill as amended entered on March 13, 1941. On that appeal the case was treated as one to declare the foreclosure void and assert the complainant's equity of redemption and for an accounting. It also appears that it was treated as a statutory bill to redeem but it was observed: Woolen v. Taylor, 27 So.2d 863, 864.
On that appeal it was held that said agreement to extend the time for redemption beyond the two years was within the statute of frauds and void. The holding on the first appeal that it was within the competency of the parties by verbal agreement to agree on the amount necessary to be paid in redemption from the foreclosure was upheld and the decree sustaining the demurrer was affirmed.
Thereafter on December 21, 1946, the bill was again amended by stricking all amendments of the original bill theretofore made, leaving in the original bill paragraphs 1, 2, 3, 4, 5, 6, 7 and by striking the specific prayer for relief set forth in the original bill and adding in lieu of paragraphs 8 and 9 so stricken an amendment covering twelve pages of this record with substituted prayer for specific relief which we catalogue here. That the court decree:
1. That complainants were entitled to have a certain amount of money and property or its value credited on the mortgage debt.
2. That the mortgage erroneously embraced land of Doc Large deceased; that it was executed by complainants in blank and the description subsequently added; that the lands described in the mortgage were not the lands agreed upon between the parties; that a particular 80 acres of the land not particularly described was the homestead of Lee Woolen and his wife; that the separate acknowledgment of the wife of Lee...
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