66 So. 506 | Ala. | 1914
Complainant (appellee) as assignee of Alexander' Kelly, by virtue of the latter’s warranty deed to the land in controversy, filed this bill against Kelly and appellant Sewell to declare Kelly’s deed to appellant a mortgage and to. redeem. Kelly confessed the bill. Complainant had a decree in the court below against both defendants on pleading and proof. Hence this appeal by Sewell.
The decree of the court overruling a demurrer to the bill as last amended is assigned for error. The point taken by the demurrer, to follow its language closely, was that there were no averments in the bill showing or tending to show that' the deed was to be treated as a mortgage either by Kelly or Sewell, nor any averments showing or tending to show that both said parties treated or considered said deed as a mortgage. This objection to the bill depends upon a con
“Complainant further shows unto your honor: That said Alexander. Kelly, prior to said 2nd day of January, 1911, had , executed and delivered a mortgage to one J. M. Barnett to secure a debt which is set forth in said mortgage. That said mortgage had been transferred by said J. M. Barnett to one T. J. Carling, trustee; that the said T. J. Carling, trustee; had undertaken to foreclose said mortgage, which attempted foreclosure was had- prior to said 2d day of . January, 1911. That during the month of December, 1910, the said N. B. Sewell had offered to lend to said Kelly a sufficient amount of money to redeem the above-described land from the said T. J. Carling, trustee. That the said Sewell agreed to lend the money to said Kelly upon the condition that the said Kelly execute and deliver to him a deed conveying to said Sewell the land Avhich was covered by the mortgage which Avas executed by said Kelly to said Barnett. Said Sewell agreed that if the said Kelly would so execute the deed conveying said land to said Sewell, he [Sewell] would charge 8 per cent, interest on the money so loaned, and Avould allow the said Kelly as much time as was necessary for the payment of said debt.
“That in pursuance of the above-mentioned agreement, the said Kelly and his wife, Fannie C. Kelly, did on, to wit, the 2d day of January, 1911, execute a deed to the said N. B. Sewell, a copy of which deed is attached, as ‘Exhibit A’ to the original bill filed in said cause and made a part hereof. That said deed was consequently delivered to the said N. B. Sewell. The said Sewell furnished the said Kelly with the sum of, to wit, $2,936.36, which was used by said Kelly in redeeming said land from said Carling, trustee, said*124 sum of money being advanced by said Sewell to said Kelly during, to* wit, the month of July, 1911. . That on the day when said money was delivered by said Sewell to said Kelly, said parties made a calculation as the amount of money which was due by , said Kelly to said Sewell. That the said parties included in this settlement the above-mentioned sum of $2,936.36, and also certain other sums of money which had been previously loaned by said Sewell at the request and for the benefit of said Kelly. That at the time the said Sewell agreed that the said Kelly should have until the 1st day of October, 1913, to repay him on account of the several sums amounting in the aggregate to $3,-152.81, together with interest at the rate of 8 per cent per annum from October 1, 1911. That all the above-mentioned agreements were in parol. That said Kelly was in possession of said lands on January 2, 1911, and remained in possesion until the filing of;this bill.”
If it be conceded that the bill wherein it sets forth the basic fact of complainant’s right is not a model of careful pleading, it yet complies passably well with the statutory requirement in reference to bills in equity, which is that they “must contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition. * * * The statute has not, however, been construed as in derogation of the cardinal rule, as it has been frequently termed, that the bill must show with accuracy and clearness all matters essential to' the complainant’s right to, relief. These matters must not be made to- depend upon inferences, nor will ambiguous averments of them be accepted as sufficient. The averments must be direct and positive, not uncertain and inconclusive.”—Seals v. Robinson, 75 Ala. 363. Complainant’s title should be stated with sufficient certainty and clear
In Smith v. Smith, 153 Ala. 504, 45 South. 168, a case of like general character with this, the court said: “Furthermore, to show that a conveyance should operate as a mortgage, it is indispensable that the bill should aver the concurring intention of both parties at the time of the execution of the instrument that it should so operate.”
But, of course, the court did not intend to hedge the pleader about with an inescapable form of words. Here the bill shows that the transaction in question originated in a negotiation for a loan, that defendant agreed that if Kelly would execute the deed, he should have a specified time in which to redeem by paying the debt with interest, and that in pursuance of said agreement the deed was executed. Our judgment is that these facts tend to show, and do show, an agreement between the parties that the sum advanced by defendant should constitute an indebtedness for the security of which the deed was executed, and sufficiently answer the language of the demurrer.
Compláinant took the depositions of Messrs. Golson, Thetford, and McKenzie, among a number of other witnesses. Defendant objected, among other things, to the use of these depositions on the ground that these -witnesses, who were practicing attorneys, had acquired knowledge of the facts while acting as attorneys át law and confidential agents for him. He assigns as error that the chancellor refused to pass on his objections. The Chancellor states in his summary of the facts that' he did not deem it expedient to pass spe-' cifically on these objections because in reaching a con-'
But aside from the consideration already stated, we are of opinion that the objections were not well taken. These witnesses represented Kelly primarily in a negotiation with a prior mortgagee for a redemption of the property in controversy. Defendant was interested in that negotiation because he was then negotiating the loan to Kelly which he afterwards made on the security of Kelly’s deed to enable him to redeem. Defendant was active in aiding, the redemption, Kelly’s right being denied by the prior mortgagee, and in this way came into confidential relations, no doubt, with these attorneys. Their testimony, therefore, falls within the rule that where the contracting parties, in pursuance of a common design, consult an attorney in reference to a contemplated contract, each being aware that the attorney is acting for the other also, each thereby waives,, as against the other, his right to treat his communications as confidential and privileged in asserting his rights under the contract.—Parish v. Gates, 29 Ala. 254 where the reasons for the rule and its exception are well stated.
“Loose declarations of trust and casual conversations derogatory of the grantee’s title have not been regarded as possessing much probative force in cases like this, even when proved to have been made; while the unsatisfactory and unreliable character of evidence of verbal statements, easy to be misunderstood and difficult to be accurately reproduced, is everywhere recognized by those accustomed to deciding controverted questions of fact, particularly when given long after the event and without motive to impress the conversations upon the memory.”—Reeves v. Abercrombie, 108 Ala. 544, 19 South. 41.
But some of the statements alluded to were neither loose nor casual — they were quite deliberate. Defendant, or his wife for him, kept a book of accounts, and in it was stated an account with complainant’s assign- or which showed, as of a date ten months after the deed, the charge of a sum as “paid by N' B. Sewell on land,” which we have no doubt is to be explained
Defendant has offered his' denials, explanations, corroborations. They impress us as being for the most part lame and unprofitable. As the chancellor observed in his opinion: “The testimony of respondent Sewell is so completely at variance with much record evidence in the case, and his explanations of such variances are so entirely unsatisfactory, and he is contradicted as to material declarations by so many apparently reputable witnesses, that the court is unable to accept his version of the transaction. Considering his testimony alone, it impresses the court that his present contention and construction of the transaction between himself and respondent Kelly, under which Kelly conveyed him the lands involved in this suit, is an afterthought, and that it never occurred to him to make such claim and contention until after he learned that Kelly had sold the lands to complainant in this suit.”
We will not dwell upon the testimony tending to impreach the veracity of defendant and some of his witnesses, nor the countervailing testimony offered by defendant. Suffice it to say of this part of the evidence that its net result has not added to the burden placed by law upon complainajnt. We a,re satisfied with the decree, and it will be affirmed.
Affirmed.