Dabbs v. Letson

Supreme Court of Alabama

Dabbs v. Letson

98 So. 4, 210 Ala. 306, 1923 Ala. LEXIS 264

CourtSupreme Court of Alabama

DecidedNovember 8, 1923

Docket6 Div. 726.

StatusPublished

Cited by5 cases

This text of 98 So. 4 (Dabbs v. Letson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dabbs v. Letson, 98 So. 4, 210 Ala. 306, 1923 Ala. LEXIS 264 (Ala. 1923).

Pincite

Opinion

SOMERVILLE, J.

The bill of complaint alleges every element necessary to entitle complainant to the relief prayed for.

Respondent’s chief contentions are that the contract sought to be enforced does not show that any valuable consideration was paid by complainant for respondent’s undertaking, and that the contract was unfair and inequitable in that it would amount merely to a gift by respondent to complainant of his statutory right of redemption from the foreclosure sale. Very clearly the contract in question show's a valuable consideration for respondent’s undertaking, even though it resulted in no personal advantage to himself. The promisee paid $500 to the promisor, and was out of pocket that much, whatever was to be done with the money. This was sufficient to support the contract. Rutledge v. Townsend, 38 Ala. 706; Hixon v. Hetherington, 57 Ala. 165, 166; Henry v. Murphy, 54 Ala. 246, 252.

*308 As to tlie equity of its specific enforcement, there is nothing in the terms of the contract itself to condemn it, nor is there anything in the evidence to justify a denial of such relief. The obligation of respondent to use the $500 in redeeming 'the land from the purchasers at mortgage sale did not require, and evidently did not contem-. plate, that he should thus use that entire amount, but only so much as was necessary for the purpose stated. The evidence in fact shows that there was a residue of $61.-04, which was retained by respondent, after payment of all that was due for redemption purposes. There is nothing in the evidence to show that this was not a fair price for respondent’s statutory right of redemption, either absolutely or under the domination of circumstances preventing its utilization by himself. On the other hand, nothing could be more inequitable than to allow respondent the benefit of a redemption of his land at the expense of complainant.

Respondent objected to a great many questions propounded by complainant to his witnesses, involving, among other things, proof by parol testimony of the mortgage referred to in the contract, and of its foreclosure, and also of the execution by the several heirs of the redemption deed to respondent, and the amount paid to each.

As to the mortgage and its foreclosure, those were collateral matters, and they .were conclusively admitted by the contract itself. Hence there was no error in allowing proof of them by parol. But the existence of the quitclaim deed procured by way of redemption from the heirs of the mortgagee was directly involved, and parol evidence could not properly be received in proof of it, unless complainant had made seasonable demand upon respondent for its production, or unless it were made to appear that it had been lost or destroyed. Such a predicate for parol evidence does not appear to have been laid, and the objections to it should have been sustained. Other parol evidence relating to the terms of the written contract should also have been excluded on objection.

However, the only assignment of error for rulings on evidence is as follows:

“The court erred in overruling the exceptions Nos. 1 to 46, both inclusive, of the respondent to the testimony of complainant.”

This assignment cannot be sustained for the reason that the record shows no numbering of the rulings on the evidence, and the reference is therefore not intelligible to this court. Moreover, a general reference like this, covering numerous items merely by number, has been held to make the assignment bad. Southern Ry. Co. v. Nowlin, 156 Ala. 222, 47 South. 180, 130 Am. St. Rep. 91. And it’ is not sustainable for the further reason that many of the rulings on the evidence were proper, and a joint assignment of several rulings must be held as bad unless it is good in toto. S. A. L. Ry. Co. v. Hubbard, 142 Ala. 546, 38 South. 750; Const. Casualty Co. v. Ogburn, 175 Ala. 357, 57 South. 852, Ann. Cas. 1914D, 377.

The conclusions stated require the affirmance of the decree appealed from. .

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JX, concur.

Free access — add to your briefcase to read the full text and ask questions with AI

SOMERVILLE, J.

The bill of complaint alleges every element necessary to entitle complainant to the relief prayed for.

Respondent’s chief contentions are that the contract sought to be enforced does not show that any valuable consideration was paid by complainant for respondent’s undertaking, and that the contract was unfair and inequitable in that it would amount merely to a gift by respondent to complainant of his statutory right of redemption from the foreclosure sale. Very clearly the contract in question show's a valuable consideration for respondent’s undertaking, even though it resulted in no personal advantage to himself. The promisee paid $500 to the promisor, and was out of pocket that much, whatever was to be done with the money. This was sufficient to support the contract. Rutledge v. Townsend, 38 Ala. 706; Hixon v. Hetherington, 57 Ala. 165, 166; Henry v. Murphy, 54 Ala. 246, 252.

*308 As to tlie equity of its specific enforcement, there is nothing in the terms of the contract itself to condemn it, nor is there anything in the evidence to justify a denial of such relief. The obligation of respondent to use the $500 in redeeming 'the land from the purchasers at mortgage sale did not require, and evidently did not contem-. plate, that he should thus use that entire amount, but only so much as was necessary for the purpose stated. The evidence in fact shows that there was a residue of $61.-04, which was retained by respondent, after payment of all that was due for redemption purposes. There is nothing in the evidence to show that this was not a fair price for respondent’s statutory right of redemption, either absolutely or under the domination of circumstances preventing its utilization by himself. On the other hand, nothing could be more inequitable than to allow respondent the benefit of a redemption of his land at the expense of complainant.

Respondent objected to a great many questions propounded by complainant to his witnesses, involving, among other things, proof by parol testimony of the mortgage referred to in the contract, and of its foreclosure, and also of the execution by the several heirs of the redemption deed to respondent, and the amount paid to each.

As to the mortgage and its foreclosure, those were collateral matters, and they .were conclusively admitted by the contract itself. Hence there was no error in allowing proof of them by parol. But the existence of the quitclaim deed procured by way of redemption from the heirs of the mortgagee was directly involved, and parol evidence could not properly be received in proof of it, unless complainant had made seasonable demand upon respondent for its production, or unless it were made to appear that it had been lost or destroyed. Such a predicate for parol evidence does not appear to have been laid, and the objections to it should have been sustained. Other parol evidence relating to the terms of the written contract should also have been excluded on objection.

However, the only assignment of error for rulings on evidence is as follows:

“The court erred in overruling the exceptions Nos. 1 to 46, both inclusive, of the respondent to the testimony of complainant.”

This assignment cannot be sustained for the reason that the record shows no numbering of the rulings on the evidence, and the reference is therefore not intelligible to this court. Moreover, a general reference like this, covering numerous items merely by number, has been held to make the assignment bad. Southern Ry. Co. v. Nowlin, 156 Ala. 222, 47 South. 180, 130 Am. St. Rep. 91. And it’ is not sustainable for the further reason that many of the rulings on the evidence were proper, and a joint assignment of several rulings must be held as bad unless it is good in toto. S. A. L. Ry. Co. v. Hubbard, 142 Ala. 546, 38 South. 750; Const. Casualty Co. v. Ogburn, 175 Ala. 357, 57 South. 852, Ann. Cas. 1914D, 377.

The conclusions stated require the affirmance of the decree appealed from. .

Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JX, concur.

Cite This Page — Counsel Stack

Bluebook (online)

98 So. 4, 210 Ala. 306, 1923 Ala. LEXIS 264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dabbs-v-letson-ala-1923.

Opinion

Related

Cite This Page — Counsel Stack