Wynn v. Hoffman

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: Wynn v. Hoffman, 203 Ala. 72, 82 So. 32 (Ala. 1919)
• Decision Date: 15 May 1919
• Docket Number: 6 Div. 822
• Parties: WYNN v. HOFFMAN et al.

82 So. 32

203 Ala. 72

WYNN v. HOFFMAN et al.

6 Div. 822

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Suit by Martha C. Wynn against Walter Hoffman and others, which, on death of complainant, was revived in the name of her administrator ad litem and heirs at law. From decree dismissing the cause, complainants appeal. Reversed and remanded.

Harsh Harsh & Harsh, of Birmingham, for appellants.

Z.T Rudulph, of Birmingham, for appellee.

THOMAS J.

The bill was for cancellation, or that a lien be declared on lands for the purchase thereof. The complainant, owner of a one-twentieth undivided interest in 72 acres of land (known as the McIntosh tract), desired to sell the same on terms and to that end gave the Underwriters' Real Estate &amp Rental Company authority in writing, of date April 1, 1905, to sell the same at "$300 per acre, one-third cash, and the balance in two notes, secured by mortgage on said interest, and payable, with interest, at one and two years, respectively," and agreed therein to pay said company "5 per cent. of amount sold for, out of said cash payment, for securing said purchaser."

It is averred in the bill that, through her said agent, having sold said property to Walter Hoffman and M.R. McNeill for $1,080, one-third cash and the balance "in equal payments in one and two years, to be evidenced by two promissory notes, to be of even date with said deed, and to bear 6 per cent. interest from date," said agent delivered the deed to said Hoffman and McNeill without procuring a mortgage for the amount of the purchase money. It is charged that "the procurement of the delivery of said deed without a delivery to her of said notes or other evidence of said debt and of said purchase money, or one-third thereof, as provided for in said deed, was a fraud upon her," and that complainant never received said notes, or other evidence of said indebtedness, or other part of said purchase money, and is informed, and therefore charges, "that her said agent never received said notes or other evidence of said indebtedness, or other part of said purchase money," or that, if said party acting as her agent as aforesaid did receive the proceeds of the sale, he had "no authority so to do, except as to one-third of said purchase price, and if said agent did receive any part of said purchase price, all or the major part thereof was immediately repaid *** to or retained by said Hoffman and McNeill, one or both, without authority from" her "and in fraud of her rights." The bill further charges that one R.T. Humphrey and the American Trust & Savings Bank claimed some interest in the land as grantees of Hoffman and McNeill, etc., and all of aforementioned persons are made respondents to the bill.

Respondent Hoffman, answering, said the property was sold to him and M.R. McNeill for $1,080; that, as originally agreed, the terms were one-third cash and the balance in one and two years from date, deferred payments to bear 6 per cent. interest; that "complainant was represented in said transaction by one Joseph T. Wilson, who had full authority to make the sale"; that, when the deed was delivered to the purchasers, "they suggested to said Wilson that it would be more satisfactory for them to pay cash for the land, as they had the money in the bank, and they therefore requested him, as the agent of complainant, and he agreed, to have another deed executed by complainant, which should express a cash consideration of $1,080 and thereby eliminate the vendor's lien. The purchasers paid cash instead of executing notes, and the said Wilson, as agent of the complainant, agreed to this, and agreed that the purchase price should be paid in cash. Thereupon Walter Hoffman and M.R. McNeill paid the full purchase price of $1,080 by check on the American Trust & Savings Bank, payable to the said Wilson, and said Wilson delivered said deed to Hoffman and McNeill, and agreed to get another deed which should express the cash consideration aforesaid. No other deed was brought to Hoffman and McNeill by the said Wilson, or by any one else, on behalf of the complainant. They therefore held and had recorded the said deed, of which Exhibit A purports to be a copy. In the meantime the said check which they had given to Wilson, who then and there was acting as agent for the complainant, had been indorsed by the said agent, and the money was paid to him for the complainant. This defendant says that, while it is true that no notes were given by Hoffman and McNeill, and no mortgage was given, or any evidence of said debt, Hoffman and McNeill had paid for the land as above mentioned." Respondent further denies that procurement of the delivery of the "deed without delivery to complainant of notes or evidence of debt as provided for in said deed was a fraud upon her."

Respondent McNeill, in his answer, averring in substance the foregoing, said further that the payment of the purchase money for said land was made in cash "upon the urgent solicitation of complainant's agent, and there was no fraud on the part of defendant against complainant in said transaction, and, as above stated, said J.T. Wilson a long time thereafter assured defendant that the transaction was satisfactory to complainant, and took a conveyance acknowledging the full receipt of said purchase money, to be executed by said complainant, and thereafter assured defendant that complainant had executed said statement, acknowledging the receipt of said purchase money in full, but for various reasons said J.T. Wilson had failed or neglected to deliver said paper to defendant, and defendant charges that complainant's said agent, J.T. Wilson, received the full amount of the purchase money for complainant, and if he failed to pay same over to complainant, or to duly account for said purchase money in full to complainant, that this defendant should not be held liable for any breach of trust in complainant's said agent, where she had authorized said agent to make said transaction and to deliver the deed for said conveyance, and put it into the power of said agent to receive said purchase money, and that defendant should not be held chargeable for any misuse or failure of complainant's agent, J.T. Wilson, to pay such purchase money," and admitted the mortgage to R.T. Humphrey, averred to have been long since "foreclosed and property sold under said mortgage." The American Trust & Savings Bank, averred in the bill to be an interested party, disclaimed any interest in the lands, and there was a decree pro confesso against said Humphrey, the other respondent.

The bill was amended to make the Birmingham Iron & Development Company a party respondent, as having acquired title through mesne conveyances from respondents Hoffman and McNeill. The Development Company, in replying, adopted the answer of McNeill, saying further that "one J.T. Wilson, who is the only heir or distributee claiming any interest in the action, is estopped by his own personal action from maintaining any claim caused by his own wrong or intentional negligence and laches, as against this defendant."

On the death of complainant, the cause was revived in the name of her administrator ad litem, J.T. Wilson, and all of her heirs at law, Mrs. Sarah F. Wilson, Mrs. Marie Jones, Mrs. Mattie Yancey, Mrs. Lillian McDonnell, and Helen Wynn (who, being a minor, sues by her next friend, Mrs. Sarah F. Wilson), were made parties complainant. This was a proper procedure as to Helen Wynn, the minor, and on a plea of her thereafter having attained majority, the nominal party--the next friend--would have been stricken out. Smith v. Yearwood, 197 Ala. 680, 73 So. 384; Robinson Lumber Co. v. Sager, 75 So. 309; Ala. Power Co. v. Hamilton, 77 So. 356, 360. All of the real parties in interest were before the court, and will be concluded by the final decree when...