100 Ala. 612 | Ala. | 1892
James A. Thompson, Sr. is complainant in this bill. The administrator, Hodges, and the heirs of Peter Thompson deceased are the respondents. The purpose of the bill is, in brief, to have- the legal title to a certain tract of land divested out of said heirs and invested in the complainant. To this end its averments present the following case : In 1873 complainant purchased the land in question from one Palmer at the price of three thousand dollars, paying five hundred dollars in cash and agreeing to pay the balance in five equal annual installments with interest, and took Palmer’s bond for title on payment in full. The vendor did not insist upon strict performance as to these deferred payments but was content “so long as the interest was promptly paid and the original debt gradually reduced.” Upon his death, however, in 1885, his administrator, one Baker, “soon became diligent about making collection of the balance of the purchase-money. . . . and about closing the matter up, and upon a statement of the account in the fall of the year 1886 it was found that the amount remaining due and unpaid was approximately $850, but because of a certain misdescription and misunderstand
The prayer of the bill is that upon final hearing a decree
Demurrers were interposed by Hodges, the administrator, as follows: 1st. The bill shows on its face that the agreement between complainant and Peter Thompson was not in writing signed by said Peter Thompson or his agent or attorney lawfully authorized thereto in writing, and said agreement was therefore void and of no effect and can not be enforced. 2d. The complainant does not offer to do equity as to this defendant by paying into court the money he claims to be due with interest. Bd. The bill does not show that complainant has made a tender to this defendant, or any one authorized to receive the money, of the amount he claimed to be due to the estate of Peter Thompson, deceased. 4th. That the facts set up in the bill as amended fail to show that said lands are or were charged with any equity in favor of complainant. 5th. That the averment of tender intended to be made in the amended bill is insufficient. The chancellor overruled these demurrers severally and from his decree in that behalf this appeal is prosecuted.
The case made by the bill on its abstract merits is clearly within a well established principle of equity jurisprudence often recognized and declared by this court. It is this: Where one person advances money to another by way of a loan through a payment to a third person for land which the borrower has purchased, or is purchasing, and to secure the loan the lender takes the title of the land to himself, with the agreement and understanding between him and the real purchaser that he will reconvey to the latter on repayment of the money advanced, equity will declare the holder of the title a trustee thereof for the purchaser and compel him to discharge the trust by the reconveyance stipulated for upon the repayment to him of the money to secure which the title was vested in him. And such case is not within the statute of frauds, but the equities of the parties will be worked out and effectuated though the contract which they have made to the end in view rests entirely in parol.—Bates et al. v. Kelley, 80 Ala. 142; Olds v. Marshall, 93 Ala. 138; Jordan et al. v. Garner et al. (MSS.)
The fifth assignment of demurrer is bad for its generality, and also in that it- is addressed solely to the amendment to the bill allowed in September, 1891, instead of being directed against the bill as amended. It is immaterial that the facts set up in said amendment do not show that the lands are subject to the trust sought to be enforced, so long as those facts considered along with the facts alleged in the original bill, do make a case for the relief sought.
This is in the nature of a bill to redeem from a mortgage. The legal title in the heirs of Peter Thompson was for the purpose of securing the payment o.f the loan made by their ancestor to complainant with interest and expenses, and they, therefore, bear the attitude of mortgagees to this property and to the complainant. So far as an offer to pay, or a tender, or an offer to do equity is concerned, the complainant is on the footing of a mortgagor praying redemption. In bills to that end, it is not necessary to relief that a tender of the sum due should be made before bill filed. It is enough if the complainant by his bill submit himself to the orders of the court and offer to pay whatever may be due the mortgagee, whether principal, interest or secured expenses as a condition to the relief he prays. The present bill is clearly sufficient in this respect; and the assignments of demui’rer which proceeded on a contrary view were well overruled. 2 Jones on Mortgages, § 1095; Perry v. Carr, 41 N. H. 371; Morrin v. Prentice, 49 Howd. N. Y. Pr. 385; Security Loan Association v. Lake, 69 Ala. 456; Rogers v. Torbut, 58 Ala. 523; See also McCalley v. Otey, 99 Ala. 584.
The record discloses no error and the decree of the chancellor is
Affirmed.