Louisville & Nashville Railroad v. Philyaw

94 Ala. 463 | Ala. | 1891

McCLELLAN, J.

— This cause was submitted for decree below on demurrers to the bill, motion to dismiss for want of equity, and motion to dissolve the injunction. Something is said in the opinion of the chancellor upon the matters involved in the demurrers, and also upon the general sufficiency of the bill; but no decree was passed either upon the demurrers, or upon the motion to dismiss the bill.’ The only decree rendered went solely upon the motion to dissolve, and dissolving the injunction; and the chancellor’s conclusion and action in that regard alone can be reviewed on this appeal.

We think the injunction was properly dissolved on the de-. nials of the answer of Philyaw. The case made by the bill depended upon the fact of payment, as therein alleged, of the purchase-money of the land, the subject-matter of the litigation, by Milstead to Philyaw. This is the pivotal fact in the complainant’s right. And this fact, as we read the answer, is over and over again denied circumstantially and directly, and without, to our minds, any evasion or equivocation. The receipt made a part of the bill purports to be signed by Philyaw in person, and to evidence the payment of purchase-money for land by Milstead to him.. The averment is that its execution was by Philyaw. The answer roundly denies that he executed it, and further, as we have seen, sets forth that Mil-stead had not paid the purchase-money, or any part of it. We can not concur with counsel, in view of all these denials, that Philvaw’s failure to negative the execution of the receipt by another authorized thereto’ for him, excites suspicion, and stamps his answer as evasive. lie met and denied the averment as made, and he alleged the fact of non-payment throughout in such way as to preclude the idea, not only that payment had been made to him personally, but also that payment had been made by Milstead to another for him.

The contract between Milstead and Philyaw, as laid in the bill, is- brought within the exception to the statute of frauds with respect to the sale of land, by the averments that. Mil-stead was let into possession at the time of the sale, and soon afterwards paid the purchase-money in full. We do not understand that the statutory exception contemplates or requires a payment of purchase-money contemporaneous with the letting into possession. — Code, § 1732; Powell v. Higley, 90 Ala. 103.

The bill, in our opinion, was not open to the objection of staleness, as seems to have been supposed by the chancellor. It alleges a contract of sale in 1S72, possession taken under it, and full payment of the purchase-money; that the vendee' remained in actual possession for six or seven years, and then removed from the State, and continued to claim the land and to pay taxes on it until 1885, when he sold and conveyed it to a third party, no one in the meantime being in actual possession of the land; that his vendee at once sold and conveyed the land to the Mobile & Montgomery Railroad Company, and that complainant, as the tenant of said company, immediately took possession of it, and retained it until ousted under judgment in ejectment in favor of Philyaw, on March 5, 1890. This Bill was filed March 24,1890. It appears that no claim adverse to the equitable title of complainant and those through whom it claims was advanced by Philyaw prior to March 4, 1887. Until such claim was made, no laches short of a delay of twenty years can be imputed to the vendee, or those succeeding to his equity. The delay subsequent to the assertion of the claim by Philyaw was only for about three years; and during all this time the complainant was in good faith, it is alleged, asserting its rights in a court of law. We are clear to the conclusion that the bill is not open to the. objection of staleness.

This, and the preceding point, have been considered because the conclusion of the chancellor on the motion to dissolve the injunction appears to be rested upon them, as well as upon the denials of the answer. The decree cm be supported only on the last consideration. The objections to the bill are without merit.

Affirmed.