Woolen v. Taylor

Citation249 Ala. 455,31 So.2d 320
Decision Date30 June 1947
Docket Number2 Div. 236.
PartiesWOOLEN et al. v. TAYLOR.
CourtSupreme 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.

BROWN Justice.

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:

'It has been held, that if a party makes a purchase in his own name, and upon his own credit, a verbal agreement to make the purchase for another, is within the operation of the statute of frauds. But in this case it was not a purchase by Coffey from Gann, the legal title holder, but it was substantially a pledge by Griffin and wife, of their equity of redemption, until the rents and profits of the property should repay Coffey the amount he had advanced for them in redeeming the property for Gann.

'If Gann had retained the title, and made a similar contract with Griffin, whilst his equity of redemption existed, could he have relied upon the statute of frauds to have prevented an enforcement of the contract? Such an arrangement would have been, in effect, a mere extension of the time of redemption. The right to redeem being a right created by law, the time for its exercise may be prolonged by the verbal agreement of the parties. To permit a purchaser, who had made a verbal contract of this kind and thereby caused the defendant in the execution, to postpone the exercise of his right of redemption to a future period, to defeat the effect of the contract by relying upon the statute of frauds, would be to allow the statute, which was intended to prevent fraud, to be used as an instrument for its promotion.' 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:

'These cases recognize the oral agreement as being within the statute of frauds and to avoid the action must be based on fraud, that amounts to an estoppel, to plead the statute. For example, in Woolen v. Taylor et al., supra (241 Ala. 316, 2 So.2d 413), it was shown by the mortgagees after foreclosure agreed with the mortgagor to permit redemption for a less sum than that paid at foreclosure sale; that before the expiration of the two-year period the mortgagor tendered the amount he agreed upon and the bill for redemption was promptly filed on failure to accept the amount tendered. This court held that there was estoppel to prevent the mortgagee from asserting the statute. Otherwise the statute would have become an instrument of fraud and it would be aiding in a fraud to permit such contract to be repudiated. In the last-cited case there was no question of laches, the agreement was to be performed within the statutory period, and the performance was sought within the two years allowed.

'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: '* * * By it (the amendment adding paragraphs 10 and 11) a statutory right of redemption was sought, but not in the alternative. The original purpose has not been further considered, so far as the briefs show. In paragraph 10, it is alleged that after said mortgage had been foreclosed, and within the two year period, respondent agreed to accept $750 to be paid by complainant in redemption of said land, and that on to wit, January 20, 1940 (which was within the two year period), the attorney for the complainant mailed to respondent his check for $750 in redemption of said property; and that on January 23, 1940, respondent returned the check to said attorney advising him that the time for redeeming the property had expired. The amendment further alleges that the time for redeeming the property expired at midnight January 22, 1940. That January 21st was Sunday, thereby extending the time to the next day, Monday, January 22d. That the letter containing said check was received by respondent on January 22d, and that said check was drawn on a solvent bank, and would have been paid had it been presented; and that the refusal to accept the tender was (not on account of it being a check instead of money, but) because respondent contended it was not tendered within the time allowed by law, and complainant then and there by allegation in the amendment, tendered said sum of $750 in full redemption of said property. But there is no allegation in it then or subsequently made that the amount of said tender was paid into court as required by section 734, Title, 7, Code. The other allegations of said amendment are not necessary here to mention.' 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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3 cases
  • Colburn v. Mid-State Homes, Inc.
    • United States
    • Alabama Supreme Court
    • September 21, 1972
    ...of the facts therein stated in the absence of fraud or duress. Weldon v. Bates, supra (229 Ala. 169, 155 So. 560); Woolen v. Taylor, 249 Ala. 455, 31 So.2d 320. * * To like effect, we find the following statement in Jemison v. Howell, 230 Ala. 423, 426, 161 So. 806, 809, where the court sai......
  • Montgomery v. Parker Bank & Trust Co.
    • United States
    • Alabama Supreme Court
    • June 14, 1951
    ...the instrument for lack of a proper acknowledgement if it fails in these requisite averments. No such allegations appear. Woolen v. Taylor, 249 Ala. 455, 31 So.2d 320; Fies & Sons v. Lowery, supra; Moore v. Bragg, 212 Ala. 481, 103 So. 452; Qualls v. Qualls, 196 Ala. 524, 72 So. 76; Hayes v......
  • Ford v. Fauche
    • United States
    • Alabama Supreme Court
    • June 22, 1961
    ...of acknowledgment is conclusive of the facts therein stated in the absence of fraud or duress. Weldon v. Bates, supra; Woolen v. Taylor, 249 Ala. 455, 31 So.2d 320. An averment that the purported grantor did not sign the conveyance is insufficient to impeach the regularity of a certificate ......

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