120 Ala. 210 | Ala. | 1897
The bill in which the appellee was complainant and the appellant respondent, was filed to enforce the payment of a promissory note made by the respondent and his wife, as a charge on lands particularly described. As to parties, the bill was properly constituted, and the demurrers upon this ground, were not well taken. The legal estate in the lands originally resided in William Gravlee, and were by him conveyed to G. W. Gravlee, who, by an instrument in writing cotemporaneously executed, declared the- consideration of the conveyance, and the uses and trusts for which it was executed. Subsequently, he conveyed to the appellant and Daniel Gravlee, the grantees assuming to execute-the trusts impressed on the lands ; and thereafter Daniel conveyed to the appellant. Having parted with the legal estate absolutely, G. W. Gravlee was not a necessary
The next question presented for consideration, grows out of the contention of the appellant, that by the acceptance of the note with his wife as surety, for the unpaid money owing her, the appellee waived or lost her equity to charge the lands. The foundation of the contention rests upon the supposed similarity or analogy of of thé equity of the appellee, to the implied or equitable lien of a vendor of lands for the payment of the purchase money, though he has made an absolute conveyance. Such lien is generally regarded as waived, if for the payment of the purchase money, the vendor takes a distinct, independent security, whether by way of mortgage, or pledge, or the personal responsibility of a third person. Here, if the supposed similarity or analogy existed, there was no taking such security. The note, as to the wife, was without legal validity or obligation, the statute inhibiting her, directly or indirectly, from becoming the surety of the husband.—Code of 1886, § 2349; Code of 1896, § 2529. The note was no more than a promissory note, of which the appellant was sole promissor, for the payment of money to the appellee, and the acceptance of such note, ^wherever the equitable lien of a vendor is
But it is quite an error to suppose that the equity of the appellee bears any resemblance or analogy to the equitable lien of a vendor of lands who has made an absolute conveyance. It does not admit of question, that by the instrument in writing executed by G. W. Gravlee cotemporaneously with the conveyance of the lands to him by William Gravlee, trusts were declared, express trusts, of which he was trustee. There is no particular formality required in the creation of such trusts. When land is the subject, all that is necessary is a writing whereby a person, having the power of disposal, agrees or directs that it shall be held or dealt with in a particular manner for the use and benefit of another.—1 Perry on Trusts, § 82; McCarthy v. McCarthy, 74 Ala. 552. The pecuniary considerations of the conveyance by William Gravlee, as declared in the cotemporaneous instrument, were the annual payment during his life of the sum of two hundred dollars, and the payment at his death, to the appellee of the sum of twelve hundred dollars, in two equal annual instalments, the second bearing interest for the term of one year. The death of the grantor happening, the lands are to be divided among his other children, to the exclusion of the appellee. We have here then, every element and characteristic of an express trust, impressed on the lands for the use and benefit of the appellee — they are charged with the pay
Receipts whether for money paid, or for other matter or thing, are regarded as informal, non-dispositive writings, open to explanation, modification, or contradiction by parol evidence.—2 Whart. Ev., § 1064; 1 Green. Ev., § 305; 2 Parsons on Contracts, 555 ; 1 Brick. Big. 860, §§ 809-10. Such a paper may be of a two-fold character — it may be not only an acknowledgment or .admission of the receipt of money or other thing in payment or satisfaction of- a debt, but it may contain a contract distinct and independent, or, as expressed by Mr. Green-leaf, “terms, conditions, and agreements or' assignments.” So far as it imports a contract, it is not open to parol evidence, but so far as it is a receipt, it may be varied or contradicted by such evidence. The evidence clearly manifests, that the note was not taken in satisfaction -or extinguishment of the trust, nor as payment of the liability of the appellant, and that the receipt was intended only as an admission or acknowledgment of the existence of the note and of its acceptance by the appellee and her husband. What seems conclusive upon this point is, that at first the appellant presented a paper in form a receipt for the note, expressing a release of the lands, the execution of which was refused, and upon his continued solicitation for a receipt for the note, it was agreed by the appellee and her husband to sign a receipt, if in it was incorporated a description of the lands on which the lien was claimed; and upon this agreement, the paper containing such description, now produced, was executed. The contention of the appellant rests upon the use of the words in payment, which are supposed to be contractual and incapable of variation by parol evidence. They are not more contractual than they would be if employed in acknowledging the receipt of money. An illustration of frequent occurrence is, that of a vendor of lands, making an absolute
.We find no error in the record, and the decree of the chancellor is affirmed.
Affirmed.