Ross & Co. v. Perry, 105 Ala. 533

Ross & Co. v. Perry

105 Ala. 533 | Ala. | 1894

McCLELLAN, J.

The notes executed by C. L. Perry on March 14, 1889, recite that they are given for lumber and material to build the maker’s house.. Ross teitifies that his firm supplied lumber and material to the value of the amount of the notes to Perry, to be used in building said house, and that such lumber and material were so used. Thompson corroborates Ross to the extent of testifying that lumber and material were so supplied and used. The defendant, Perry, admits that lumber to the value of one hundred, eighty-five and 70-100 dollax-s was so supplied and used. He says, however, that he has paid for it; and puts in evidence a note which he executed to complainants on November 18, 1887, and payable November 29, 1887, for said sum of $185.70, whiclx he insists he paid and took up. This note, like those of March 14, 1889, recites that it is given for lumber and material to be used in building said house, and also like the latter contains an agreexnent that “the ownership and title of said lumber &c. is to remain in said Ross & Co. until this note is paid.” And *537lie says further, that the notes of March 14, 1889, their recitals to the contrary notwithstanding, were not given for the price of lumber sold him by the complainants, but in settlement of a balance due from him to them on general account. But when we take into consideration the positive evidence of Ross, the recitals of the notes of March 14, 1889, the admission by Perry that he bought lumber which he used 'in building his house upon an agreement that the title should remain in Ross & Co. until paid for, and the fact that the $185.70, which he admits having owed for lumber, with interest to the maturity of the notes of 1889, amounts with close approximation to the gross sum evidenced by those notes, and his further admission, aside from the writings, that that he now owes complainants the -amounts stated in said notes, we can not reasonably escape the . conclusion that the notes now held by complainants were given in renewal of the note of 1887, upon the same consideration and with identical agreement for the reservation by Ross & Co. of title to the lumber constituting the consideration until the same was paid for.

Here then we have title in complainants to lumber which was sold by them to the defendant, Charles Perry, to be used by him in the erection of this house, which was so used, and which now constitutes a part of said house. Ross & Co. could not maintain detinue for the lumber, because it has been attached to and has become a part of defendant’s realty. Nor could they maintain trover for there has béen no conversion of the lumber by the defendant : It has been used and applied by him according to the terms of the sale of it to him. They never had a material-man’s lien under the statute, because they never parted with the title to the property. Ross & Co. thus retaining title, and thus cutting themselves off fróm all remedies at law as for a conversion of their property and for its recovery in specie and to subject it under the mechanics' and material-men’s statutes, must be held— and such was the manifest contemplation and intention of the parties — to have so retained the title as a security for the payment of the price the defendant Charles Perry agreed to pay them for i,t. That clear intent and meaning of the contract can only be effectuated — no force can be given to the contract except — by holding that this title in Ross & Co. to the lumber, with which in great *538part the house was constructed, was intended to constitute and did constitute an equitable lien or mortgage in their favor upon the house itself, and, of course, upon the lot of land upon which it is situated. The contract itself, taken with the fact that the lumber was in fact used according to its terms in building the house, evidences every element of an equitable mortgage; and it can be so declared and enforced in this case under averments of the bill and the prayer for general relief .—Donald & Co. v. Hewitt, 33 Ala. 534; M. & C. P. R. R. Co. v. Talman et al., 15 Ala. 472; Newlin, Fernley & Co. v. McAfee, 64 Ala. 357; Jackson, Morris & Co. v. Rutherford, 73 Ala. 155; Butts v. Broughton, 72 Ala. 294; Powell v. Jones, 72 Ala. 392. And this relief, the complainants here are entitled to whether the house and lot constitute the homestead of the defendants or not—Newbold v. Stuart, 67 Ala. 326—and also regardless of his solvency vel non.

Nor is it any defense that the house and lot, or some interest or estate in the same, was conveyed by the debtor defendant to his wife, the other defendant to the bill, in consideration of love and affection, subsequent to the original contract under which the lumber was furnished, subsequent to the building of the house, and subsequent to the execution of the first note. She was a mere volunteer and took subject to the equitable mortgage of Ross & Co., though she may have had no notice of it.—Newlin, Fernley & Co. v. McAfee, 64 Ala. 357, supra.

The decree of the chancellor denying relief and dismissing the bill will be reversed, and the cause will be remanded to the chancery court to the end that the relief may be granted in consonance with the foregoing opinion.

Reversed and remanded.