44 So. 97 | Ala. | 1907
James H. Lowry was the executor of the will of A. J. Lowry. The will of said A. J. Lowry in its sixth item provides: “I do hereby constitute and appoint him (James H. Lowry), executor of this my last will and testament, with full power to sell at public or private sale, and wthout any order of court, any lands or property that may be necessary to be sold for the payment of any debt I may owe at my death, and in view of this confidence and trust of my beloved son, I expressly will and desire that upon granting letters of executorship, that my said.son, shall not be required to execute any bond, the same being hereby waived.”
The wife of James H. Lowry, by item 5 of the will, was made alternate executrix, in the event of the death of said James H. Lowry.
Item 7 provides: “That the control and management of said property by my son and his wife, hfary Lowry, shall continue during their lives, first, under the control' of James H. Lowry, and if he should die and his wife, Mary, survive him, then his wife, Mary Lowry, and I expressly Avill and desire, that Avhile the title of the property, real and personal, and the rents, vests in the children of said James H. Lowry, yet the said James H. Lowry, during his life shall have a right to use the rents and profits, Avithout any liability to account for the same, and in the event of his death, his wife. Mary Lowry, shall have libe authority, this provision being made in the confidence that my son and his wife will properly clothe and support said children.”
On the death of said A. J. Lowry, F. A. Vaughan, as is shown, claimed to he a creditor of his estate, to the amount of $968.29, and he pressed said James IL, as executor, to pay the same; and said James IL, as executor,
•The payer is for an injunction against said Wynn, as administrator, pending this suit, from prosecuting his said suit in ejectment against said James H. Lowry for the possession of said lands; and, on a final hearing, for a decreee declaring said deed to be a mortgage to secure the indebtedness due by the estate of said A. J. Lowry, deceased, to said F. A. Vaughan and to his administrator, W. H. Wynn, and for a reference to the register to ascertain the amount due on said mortgage, after excluding all matters not properly chargeable against the estate of said A. J. Lowry, and after deducting all payments that have been made thereon, and any indebtedness due from said Vaughan to said A. J. Lowry, as set up in the bill, and that upon the payment of such balance as may be found due, the estate of said Vaughan, or to his administrator, Wynn, that said mortgage be declared void and of no effect, and for a divestiture, of title out of the estate of said Vaughan, his heirs and administrators, and the investiture of same in complain
The defendant demurred to the bill on many grounds,, and moved the court to dismiss it for want of equity. One of the grounds of demurrer was, that a certain note-made by Steiner and Vaughan and Wright, was, as shown by the bill, barred by the statute of limitations and by thp statute of. nonclaim as against the estate of said Vaughan.
The chancellor was of opinion that, if true as alleged in the bill, that said deed was to operate as a mortgage; that it was understood and agreed between the said Vaughan and J. H. Lowry, at the time said deed was. executed, that the same was to secure past due indebtedness; that Lowry was to remain in possession of said lands and make payments on said indebtedness, from time to time, until he .could pay such indebtedness, and it 'was distinctly understood that said deed was to operate only and solely as a security for the amount claimed by said Vaughan to be due from said Lowry as executor, and that said Lowry made payments thereon, and the parties treated said deed as a mortgage, then the court was of opinion that it would be inequitable and unjust to complainants to suffer said deed to stand as an absolute conveyance, especially since complainants offer to-do equity by paying the debts said deed was intended to secure. The demurrers to the bill and the motion to dismiss were separately overruled.
In this case, the evidence is conclusive, that a debt existed from Lowry to Vaughan, prior to and at the time of the execution of the deed. The recitals of the deed itself, show this fact, aside from the other evidence-in the case.
G. M. Gorpew and G. J. Sorrell both testified, that they, each, desired to purchase portions of this land and spoke to F. A. Vaughan about it, and he referred each of them to J. II. Lowry, and told them, if they could trade with him, it would be all right with him, so that he got the money on what Lowry ivas owing him.
It Avas shoAvn that the land was worth from $1,000 to $3,000.
It Avas shoAArn, that F. A. Vaughan sold and conveyed to O. M. OorpreAV a portion of the land, and Lowry was to large credit for the amount paid to Vaughan. The sum paid as a consideration for the land was $85, and a deed Avas executed to him by Vaughan for Avhat he bought, dated May 12, 1900, Avhich amount Avas allowed as a credit to the Loaatv estate by the register.
The chancellor decided that complainants were entitled to haAre the deed made and executed by Jas. ,H. Lowry, deceased, as executor of the will of A. J. Lowry, deceased, to said Vaughan, cancelled as to all the lands therein conveyed, except such parts of said lands as
The register was directed to ascertain and report to the court what amount was due from the estate of said A. J. Lowry to the said Vaughan, with interest thereon to the date of the next regular term of the court, and also to ascertain Avhat lands were sold by said Vaughan to said Corprew, with an accurate description of them. This reference the register executed, in accordance with said decree, and ascertained that the sum of $42.39, including interest, was due the said Vaughan, and so reported to the court.
In Turner v. Wilkinson, 72 Ala. 366, the rule is stated for determining whether a particular transaction was a mortgage; Adz.: “Did the relation of debtor and creditor exist, before and at the time of the transaction? or, if not, did the transaction commence in a negotiation for a loan of money? Was there great disparity between the value of the property, and the consideration passing for it? Is there a debt continuing, for the payment of which the vendor is liable? If any of these facts is found to exist, in a doubtful case, it Avill go far to show a mortgage was intended. If all of them are found concurring, the tfansáction aaIII be regarded as a mortgage.”
From the facts as stated’above, it will be seen that all these tests for a mortgage security existed, and there was no error in the decree of the chancellor in so holding.
In this case no objection was made to the bill by demurrer or otherwise, for the want of proper or necessary parties.
The rule, however, seems to he inflexible, that all persons who have a material interest in the litigation, or who are legally or beneficially interested in the subject-matter of the suit, and whose, rights or interests are sought to be concluded thereby, are necessary parties.— Perkins v. B. I. & C. Co., supra; McKay v. Broad, 70 Ala. 378; Smith v. Murphy, supra; Story’s Eq. Pl. § 72; 3 Mayfield’s Dig. pp. 254-256.
We have been unable to discover, why the heirs of Vaughan were not necessary parties to the bill, a defect of -which the chancellor, ex mero motu, without objection by demurrer, may notice. — Goodman v. Benham, 16 Ala. 625.
The register in stating the account of A. J. Lowry, deceased, with said F. A. Vaughan, allowed as a credit to said Lowry, the amount of Steiner, Vaughan and Wright’s notes for $300, dated October 27, 1879 due 25th December, 1884, with interest, amount! no- to $246.07. The defendant objected by demurrer that the bill was without equity as to this claim because the «ame was barred by the statute of limitations. This mode of
The defendant objected to the allowance of this claim, on the reference, on the grounds stated.
Por the errors indicated, the decree below is reversed and the cause remanded.
Reversed and remanded.