62 So. 44 | Ala. | 1913
Lead Opinion
The following extract from the testimony of the only living member of the defendant partnership, viz.: “Mr. Dean said, Now, men, you-uns has got all my papers, and I ain’t got no more show than a rabbit, but I believe you-all will do what’s right about it,” — coupled Avith the marked difference between the answer of the respondents as originally filed and their ansAver as amended, has not been without effect in the determination of this cause by this court.
In the fall or Avinter of 1902 John J. Walker conveyed to A. C. Roberts about 100 acres of land in Jefferson county. The consideration of this conveyance was a conveyance made by EdAvard E. Dean to said John J. Walker to 187.60 acres of land in the state of Texas, and $1,000 in money. The deed from Edward E. Dean to said Walker bears date September 29, 1902, and recites a cash consideration of $3,500. The $1,000 was paid in money, $500 by A. O. Roberts, and $500 by Robert E. Boyle. Roberts and Boyle were partners in the real estate business in Birmingham, and they claim
Dean, who is a cripple, lived in Birmingham. So did Roberts and Boyle. Walker lived near Bessemer, which is 10 or 12 miles from Birmingham. The negotiations for the purchase of the Walker lands were conducted by Roberts and Boyle, with Walker either in Bessemer or at Walker’s home, which was on the said Walker lands, not far from Bessemer. The deed from Dean to Walker and the $1,000 were delivered by Roberts to Walker at Walker’s home on the Walker lands on the day after Dean executed and delivered to Roberts and Boyle the above deed conveying the Texas lands to Walker. When Dean delivered said deed to Roberts and Boyle they gave him no paper, no writing, or other kind of evidence of their alleged agreement with him. They simply took his deed to Walker, which conveyed all the land which he appears to have owned in the world, and left him with an alleged verbal promise to pay him, at some future day, $500. When Dean left Roberts and Boyle’s office on the occasion named his land in Texas was gone. It was then — just as Dean was leaving the office of Roberts and Boyle — that, according to the evidence of Roberts: “Mr. Dean said, Now, men, you-uns have got all my papers, and I ain’t got no more show than a rabbit, but I believe you-all will do what’s right about it.’ That was before Walker made the deed to me (Roberts), but when Dean had made the deed to Walker and delivered it to me.” The day after Dean made the above statement, Roberts, as we have already
We have above given the side of Roberts and Boyle to this transaction, and we will now give the contention of said Edward E. Dean.
Dean claims, and on this subject he is corroborated by all the witnesses, that he opened negotiations with Walker direct some time before he ever mentioned the matter in any way to Roberts and Boyle. He seems to have learned that Walker intended to move to Texas, and he saw Walker and told him that he owned the above-mentioned lands in Texas, and indicated that he would be glad to swap him the lands in Texas for the Walker lands in Jefferson county. He further claims that while these negotiations were pending he saw Roberts and Boyle as real estate agents, and engaged their aid as such agents toward making the trade with Walker. On this subject there also seems to be no serious dispute between the parties. Dean also claims, and in this he is also corroborated by all the witnesses, that
There is no doubt about one fact as to which. Roberts corroborates Dean. Roberts claims, which Dean denies, that he told Dean that the deed had been made to him (Roberts), but he admits that he told Dean that it had been filed for record in the probate office. The deed had not been filed for record. Dean made a diligent search for it, and he did not find it. Roberts, in his testimony, undertakes to explain why he had not filed the deed for record, but his explanation does not appear to be satisfactory. Dean testifies that Roberts told him that the deed had been made to him (Dean), and that it had been filed in the probate office, but that he not only did not find a deed to him but found none to Roberts in the probate office, but he did find a deed there from Roberts to O. L. Dabbs conveying a part of the Walker land to Dabbs; that he at once saw Dabbs and told him of his claim on the Walker land. This Dabbs admits, and he also admits that after this notice, he bought another part of this same land from Walker. Dean further claims that he never knew that the deed had been made
There is much conflict in the evidence in many material points, but there are some things about which there can be no dispute, and these things, we think, are reasonably safe guides to the truth. Dean trusted Roberts and Boyle, for after he had delivered to them a deed conveying to Walker all of the land he owned in the world, without taking from them the scratch of a pen as evidence against them, he said to these men — real estate agents, presumably accustomed to business — “You have all my papers; I have nothing to show the agreement between us, but I believe you will do what is right.” Dean made the deed to Walker, not to Roberts and
Boyle, as we have already said, was dead when the amended answers were filed, and he died before all of the testimony in this case was taken. Substantially all of the negotiations between complainant and Roberts and Boyle were had by complainant with Roberts, and we discard from our consideration, in determining the issues in this case, any statement which was made by Boyle to the complainant.
While Roberts is, probably, an illiterate man, and for that reason may not appreciate, as fully as an educated man would, the duties and obligations Avhich, an agent owes to his principal, and while he may not, for that reason, liarle fully understood the effect of the transaction which he had with Walker, which culminated in the delivery by Walker of the deed to him, nevertheless, in equity, which views the transaction in the light of common sense and common honesty, the Walker land, when Walker delivered the deed to Rob-erts, was the land of complainant, charged with the payment to Roberts and Boyle of the debt to which we have above referred. The. legal' title to the land was, however, in Roberts. We do not feel that the complainant, as to the first conveyance to Dabbs, the conveyance to the 39% acres, has established, as between himself and Dabbs, his claim to relief. The first deed from Roberts to Dabbs does not, it is true, correctly state the amount which Dabbs paid Roberts for the land, and' this may, under all the circumstances of this case, cast doubt upon the bona fides of the parties. Roberts, how
This situation does not, however, exist as to the other tract of land which was conveyed by Roberts to Dabbs. This purchase was made by Dabbs after he had received notice of the claim of complainant. This land is referred to in the testimony of Dabbs as the 28-acre tract, and appears to have been conveyed to Dabbs by Roberts by a deed dated October 23, 1903, upon a recited consideration of $660. As to this land the complainant’s equities are greater than those of Dabbs, and that land in equity belongs to complainant.
The respondents Roberts and J. W. Davidson and Mary Lee Averette, as administrators of the estate of
In accordance Avith the above opinion a decree is here rendered canceling, as a cloud upon the complainant’s title, the said deed made by Roberts to Dabbs on October 23, 1903, and vesting’ the complainant with the absolute fee-simple title to the same.
A decree is also here rendered canceling, as a cloud upon the complainant’s title, the conveyance from Walker to Roberts, except in so far as the same relates to the lands described in the fifth subdivision of the complainant’s bill of complaint, and vesting in the complainant the absolute title in fee simple to all of said lands described in said deed from Walker to Roberts, except said 39% acres described in the fifth subdivision of the complainant’s bill of complaint, and which 39'% acres belong to- Dabbs free from any claim on the part of the complainant. In order that the amount due complainant by the respondents may be ascertained and its payment enforced by appropriate decrees, this cause is reversed, and remanded to the city court of Birmingham, sitting as a court of equity, for further proceedings in accordance with this opinion.
Reversed and rendered in part, and remanded in part.
Rehearing
ON APPLICATION FOB REHEARING.
The able and exhaustive brief filed by counsel for appellees on this application for a rehearing, which has been carefully and candidly considered, deserves a reply at our hands.
It seems to us that the equitable principles upon which our conclusions in the original opinion in this case are based flow naturally and logically from the facts as we find them to exist in the record. For this reason ive did not load the opinion down with citations of authorities.
1. In this case there was a plea of the statute of frauds. Appellee stresses the proposition that, as the agreement on the part of Roberts and Boyle to pay for appellee in cash' the boot which was to be paid by Dean and take a mortgage back from Dean to secure this cash payment rested in parol, therefore the statute of frauds defeated Dean’s right of recovery. On this subject counsel for appellee cite many authorities, among them the following: Lehman v. Lewis, 62 Ala. 129; Long v. King, 117 Ala. 423, 23 South. 534; Preston v. McMillan, 58 Ala. 84; Whaley v. Whaley, 71 Ala. 159; Tilford v. Torrey, 53 Ala. 120; Watkins v. Carter, 164 Ala. 456, 51 South. 318; Bourke v. Callanan, 160 Mass. 195, 35 N. E. 460; Reaves v. Garrett, 34 Ala. 564; Hughes v. Letcher, 168 Ala. 314, 52 South. 914; Patton v. Beecher, 62 Ala. 579; Brock v. Brock, 90 Ala. 86, 8 South. 11, 9 L. R. A. 287; Moseley v. Moseley, 86 Ala. 289, 5 South. 732; Smith v. Smith, 153 Ala. 504, 45 South. 168; Moore v. Campbell, 102 Ala. 445, 14 South. 780; Butts v. Cooper, 152 Ala. 375, 44 South. 616; Mitchell v. Wright, 155 Ala. 458, 46 South. 473.
“It is a principle of universal prevalence that an agent must not put himself, (hiring the agency, in a position which is adverse to that of his principal. — 1 Parsons on Contracts, p. 93. This rule cannot, perhaps, be more comprehensively and concisely stated than as we find it in the American notes to Keech v. Sanford, 1 Lead. Cases in Eq. 53: “Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited front acquiring rights in that subject anvtagonistic to the person with whose interests he has become associated.’ ” — Scottish Union & National Insurance Co. v. Dangiax, 103 Ala. 388, 15 South. 956; Davis v. Hamlin, 108 Ill. 40, 48 Am. Rep. 541; Waller v. Jones, 107 Ala. 331, 18 South. 277; Kent v. Dean, 128 Ala. 600, 30 South. 543.
“Where an agent to purchase purchases for himself, he acquires nothing thereby, though he contributes of his own means to effect it, and the product will belong to his principal.” — Bergner v. Bergner, 219 Pa. 113, 67 Atl. 999.
It seems clear, therefore, that upon reason and authority the complainant, Dean, under the facts of this case, is entitled to the relief which this court has decreed to him, and that the statute of frauds constitutes no defense to this suit.
2. Dabbs bought the land upon which he has seen proper to erect his improvements after he had been notified of complainant’s claim. He probably trusted Roberts and Boyle to protect him; but, as he bought with full knowledge of complainant’s rights, he made the improvements at his peril, and we know of no principle of equity under which he can claim reimbursement for the value of the improvements so made.
The application for a rehearing is overruled.