120 Ala. 418 | Ala. | 1898
It is manifest that, admitting ,all that is stated by defendant, J. B. Goodwin, to be true, the averments of the bill as admitted by the other respondents, — Witherby, Stoughton and Garter, in their respective answers, and as shown by them, when examined as witnesses to be substantially true, — may be also true. As corroborative of the truth of the real transaction as it was, and as it was intended to be, Witherby in his deposition proves and attaches several letters written by Goodwin to Stoughton, and to Witherby and Stoughton. In one, dated March 5, 1890 he says : “I note you have closed- the trade with Merrell by paying him $25 down, and you are now having deeds and records examined. I would suggest that it would be best to have Merrell to deed -property to Garter (I believe that is the name of the old gentleman that did the buying), and he
In another, dated July 21, 1890, to Witherby and Stoughton, he requests them to get Merrell to extend note, ‘‘as it is not convenient for me to pay my part, now and in another, to Witherby, dated, October 22; 1890, he says, ‘‘am sorry to say that I am not in a position at present to meet any part of the notes. I think you and the Col. (meaning Stoughton) ought not to object carrying my part for a while, anyway, as I loaned you and him the money to join with ; and turn about is fair play.”
From all the evidence, it is too plain to admit of serious dispute, that this transaction of the purchase of this land was by Witherby and associates on the one side, as purchasers, and Green Merrell on the other, as vendor of the land ; that they were the real parties to the transaction from beginning to endthat Carter was simply their agent, and that all he did was for them, on their account and in their interest. They paid all the purchase money that was paid, and it was well understood and agreed between them and Carter and Merrell, that they were to pay the balance. For purposes well intimated in the proofs, Carter was to be held out as the purchaser, while they were to remain in the background for whatever advantages might accrue to them from such a movement. They are b.ound on every principle of law and equity fojrthe purchase money remaining due on the note sued on. They bought the property, paid a large part of the purchase money, and were put in possession of the land. If their contract of purchase was in parol, under such proof, it was unaffected by the statute of frauds.—Parrish v. Steadham, 102 Ala. 615; McMahan v. Jacoway, 105 Ala. 585, 587; Eubank v. May & T. Hardware Co., 105 Ala. 629; A. G. Rhodes F. Co. v. Weeden &
Moreover, the contract was executed. Nothing remained to be done on Witherby and associates’ part, nor on the part of Merrell, the vendor, or of Carter standing in the place' of the real purchasers, but for them to pay the balance of the purchase money as they had agreed to do. The statute of frauds has no application to executed, but to executory contracts.—Lagerfelt v. McKee, 100 Ala. 430; Gafford v. Stearns, 51 Ala. 444.
The statute, Code of 1886, section 3605 (Code of 1896, § 859), provides for the issuance of executions in all foreclosure suits, and suits for the enforcement of equitable liens, of which character is a suit for the enforcement of vendor’s lien.
From what has been said, it is manifest that the court erred in sustaining the defense set up by, and in not rendering a personal judgment against, the respondents.
The decree of the court below will be reversed, and this court proceeding to render the decree that the court below should have rendered, orders that judgment be here entered against each of the defendants, W. E. Carter, Edwin T. Witherby, Homer E. Stoughton, and James B. Goodwin, for the sum of $1,473.80, with interest from the 17th day of May, 1897, the date of the sale of said, real estate by the register and his report thereof to the court below.
Eeversed and rendered.
After a careful examination of the original bill of complaint filed in this cause we have arrived at the conclusion that its averments are insufficient to authorize a personal decree against the defendants, Witherby, Stoughton and Goodwin. This view, which .we now take of the case, was not presented upon the original hearing either by argument or by briefs of coun
From the authorities the rule is deducible that, when a sale is made to one.who is acting in the purchase as agent for a principal who is known to the vendor, and only the personal obligation of the agent is taken for the price of the property sold, the prima facie presumption arises that the personal credit is given to the agent alone.—Gates v. Brower, 9 N. Y. 205; Coleman v. First Nat. Bank of Elmira, 53 N. Y. 388; Taintor v. Prendergast, 3 Hill, 72; Tuthill v. Wilson, 90 N. Y. 423; Paige v. Stone, 10 Metc. 160, and note to same case in 43 Am.Dec. 420.
The bill here states only enough to bring the case within that rule. It avers that the sale of'land was made by Green Merrell, complainant’s transferor, to W. R. Carter, as the agent of Ed T. Witherby, Homer R. Stoughton and James B. Goodwin, and that the conveyance'was made by the vendor to Carter,.and that Carter’s note was taken for the deferred payment.
A theory is advanced in appellant’s brief replying to the application for rehearing to effect that he is in equity subrogated to the rights of Carter as against Witherby, Stoughton and Goodwin to compel them to pay the debt for which Carter had bound himself in their behalf. The bill is not framed to obtain relief in that aspect. If such equity exists it could be enforced only upon averment of facts showing the, nature of the obligation to Carter resting upon his principals. The status of the transaction between them is not shown by the bill otherwise than that Carter acted for his principals in the purchase with the understanding that he, after obtaining title, should convey the land to .them, and “that said W. R. Carter executed his deed to said land to the said Ed T. Witherby, Homer R. Stoughton and James B. Goodwin, but the date of said deed and the consideration therefor are unknown to complainant.” It is alleged that Witherby, Stoughton and Goodwin made the cash payment, but it is not alleged that they made any agreement, express or implied, with Carter or Green Merrell to make those or any remaining payments for the land.
The petition for the personal decree referred to in appellant’s brief does not, in fact, and could not, properly supply the averments necessary to bind the defendants, Witherby, Stoughton and Goodwin.
The petition for rehearing must be granted, and the decree appealed from will be here affirmed.
