118 So. 739 | Ala. | 1928
The appeal is from the sustaining of demurrer and dismissing the bill, having for its purpose the declaring of a trust in land. And definitions of such trusts are found in Butts v. Cooper,
It is averred that appellant's land had been foreclosed, and he had an agreement with the purchaser for a redemption, and procured appellee to effectuate the same by the payment of the required moneys, title to be taken in the redemptor, and that the moneys advanced to be secured by mortgage on the lands as redeemed; that appellee paid the money, took the deed in his own name, contrary to the agreement and loan, and declines to accept repayment of the sums so paid, and declines to reconvey the lands to complainant.
The bill avers the facts from which the relation exists and good faith between the parties arose, avers that complainant is ready, able, and willing to make the necessary payment, and "places himself in the hands of the court and offers to do equity." Clark v. Whitfield,
The court committed error in sustaining demurrers and dismissing the bill. The facts averred showed that the complainant procured the respondent to advance the moneys (by way of a loan, Bates v. Kelly,
In Butts v. Cooper,
The averment of the instant bill is not that the agreement was to take title in respondent, so as to defeat creditors, but that respondent stated "that he took the title in himself for the use and benefit of this complainant, but for the purpose of preventing other creditors of the complainant from getting a *366
lien on said lands or having the same sold to satisfy their indebtedness." Hence the authorities cited below, as to denying relief on executory contracts founded on illegal or immoral consideration, have no application (Perkins v. Perkins,
The word "agreement," as stating complainant's rights in the land and obligation assumed to be discharged as between him and the purchasers at mortgage sale, has a well-defined legal meaning, and declared to signify a mutual assent of the parties to certain contract terms. Rohr v. Baker,
Appellee insists that the use of the words "redemption or purchase" denies a trust and renders the bill subject to grounds of demurrer assigned. When the whole averment is considered, as to the foreclosure, redemption, or repurchase of same, and taken most strongly against the pleader, it does not show that complainant had no valid, lawful, enforceable, and personal right as to the land, nor that his right of redemption "had expired when respondent bought said land." Let it be borne in mind that there are no conflicting rights involved, as those of junior and senior mortgagees or assignees, growing out of a conveyance by mortgagor in lieu of foreclosure. McAllister v. Catchings,
When appellee paid at the instance of complainant appellant and pursuant to their agreement and contract, the sum of $1,200 to the purchasers at mortgage foreclosure, there arose the obligation to pay appellee, on the part of complainant appellant, the sum so paid by former and at his request. And this was within the general rule of resulting trusts (Watkins v. Carter,
The demurrer was sustained and the bill dismissed without opportunity to amend, if there was desire and necessity to supply any amendable defect. If such had been the order in vacation, it would be reversible error. Pollock Co. v. Haigler,
The judgment of the circuit court, in equity, is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.