Gravlee v. Lamkin

120 Ala. 210

Opinion

BRICKELL, C. J.

The bill in which the appellee was complainant and the appellant respondent, was filed to enforce the payment of a promissory note made by the respondent and his wife, as a charge on lands particularly described. As to parties, the bill was properly constituted, and the demurrers upon this ground, were not well taken. The legal estate in the lands originally resided in William Gravlee, and were by him conveyed to G. W. Gravlee, who, by an instrument in writing cotemporaneously executed, declared the- consideration of the conveyance, and the uses and trusts for which it was executed. Subsequently, he conveyed to the appellant and Daniel Gravlee, the grantees assuming to execute-the trusts impressed on the lands ; and thereafter Daniel conveyed to the appellant. Having parted with the legal estate absolutely, G. W. Gravlee was not a necessary party to the bill.—Batre v. Auze, 5 Ala. 173; Wilkinson v. May, 69 Ala. 33; Boutwell v. Steiner, 84 Ala. 307. Though the conveyance he executed to Daniel H. Gravlee and the appellant stipulated, as part of its consideration, that they should pay his wife one thousand dollars, on the death of the original grantor, she was not a necessary party defendant. Her relation at best, was that of a subsequent incumbratícer — subordinate in right and equity to the pre-existing trust impressed on the lands in favor of the complainant. Such an incumbrancer may be a proper, but is not a necessary party to a bill to enforce the prior right of equity.—Cullom v. Batre, 2 Ala. 415; Forrest v. Luddington, 68 Ala. 1. Nor were the heirs of William Gravlee necessary or proper parties. The ancestor did not die seized of the lands, and by descent no estate or interest therein had devolved on them. If the relation of the wife of the appellant' was, as insisted, that of a surety on the note, she may have been a proper, but was not a necessary party.—Tedder v. Steele, 70 Ala. 347; Ramage v. Towles, 85 Ala. 588.

The next question presented for consideration, grows out of the contention of the appellant, that by the acceptance of the note with his wife as surety, for the unpaid money owing her, the appellee waived or lost her equity to charge the lands. The foundation of the contention rests upon the supposed similarity or analogy of of thé equity of the appellee, to the implied or equitable lien of a vendor of lands for the payment of the purchase money, though he has made an absolute conveyance. Such lien is generally regarded as waived, if for the payment of the purchase money, the vendor takes a distinct, independent security, whether by way of mortgage, or pledge, or the personal responsibility of a third person. Here, if the supposed similarity or analogy existed, there was no taking such security. The note, as to the wife, was without legal validity or obligation, the statute inhibiting her, directly or indirectly, from becoming the surety of the husband.—Code of 1886, § 2349; Code of 1896, § 2529. The note was no more than a promissory note, of which the appellant was sole promissor, for the payment of money to the appellee, and the acceptance of such note, ^wherever the equitable lien of a vendor is recognized, does not affect the lien.—1 Lead. Eq. Cases, 485. Nor would the waiver of exemptions, contained in the note, as is now insisted, convert it into a distinct, independent security. Considering this particular question, it was said by Clopton, J., in Thompson v. Sheppard, 85 Ala. 614: “A waiver of exemptions specified in a note creates no lien upon the property that would be otherwise exempt. The only effect is, to subject the exempt property to levy and sale under an execution on any judgment which may be rendered on the note, the same as other property of the debtor. Such note may enhance the personal security of the vendee, but can in no sense be regarded as a distinct and independent security. The taking such note manifests rather an intention to look to the personal security of the vendee only, and is not presumptive of the waiver of the vendor’s lien.”

But it is quite an error to suppose that the equity of the appellee bears any resemblance or analogy to the equitable lien of a vendor of lands who has made an absolute conveyance. It does not admit of question, that by the instrument in writing executed by G. W. Gravlee cotemporaneously with the conveyance of the lands to him by William Gravlee, trusts were declared, express trusts, of which he was trustee. There is no particular formality required in the creation of such trusts. When land is the subject, all that is necessary is a writing whereby a person, having the power of disposal, agrees or directs that it shall be held or dealt with in a particular manner for the use and benefit of another.—1 Perry on Trusts, § 82; McCarthy v. McCarthy, 74 Ala. 552. The pecuniary considerations of the conveyance by William Gravlee, as declared in the cotemporaneous instrument, were the annual payment during his life of the sum of two hundred dollars, and the payment at his death, to the appellee of the sum of twelve hundred dollars, in two equal annual instalments, the second bearing interest for the term of one year. The death of the grantor happening, the lands are to be divided among his other children, to the exclusion of the appellee. We have here then, every element and characteristic of an express trust, impressed on the lands for the use and benefit of the appellee — they are charged with the pay ment to her of a specific sum of money at times appointed. The trust cannot be extinguished otherwise than by the payment of the money, or by the release, or -the agreement of the cestui que trust. The mere acceptance of security for payment, in the absence of a release or of an agreement, express or implied, would not operate an extinguishment of the trust, as the taking, of such security will not operate a waiver or abandonment of a lien reserved by contract by the vendor of lands, or which he may carve out for himself by retaining the title.—2 Jones on Liens, § 1116. The insistence that, by the taking of the note there was an intentional displacement, waiver, or extinguishment of the trust, finds no support in the evidence of the attendant circumstances when the note was taken. The first instalment of- the twelve hundred dollars having been paid, and the day of payment of the remaining instalment not having arrived, the appellee and her husband, desiring some more tangible evidence of the liability of the appellant to make payment of it than was afforded by the several conveyances through which he derived title to the lands, proposed that he should execute a mortgage on the lands to secure its payment. This was declined, and the note was taken, because it could be more conveniently used in anticipated dealings or transactions with others. True, the appellant testifies that the note was executed “with the understanding that it released other parties by my wife going on the note with me, and that he looked altogether to us through that note for the payment of that debt. The understanding was based on the simple fact that he could use the note as collateral.’’ This, to say the least, is rather equivocal in meaning, and may import that it was the conclusion or opinion of the appellant as to the effect of taking the note-. It can not be accepted as proof that there was an agreement on the part of the husband of the appellee by whom the note was taken, that it should, operate a release of the lands from the trust; an agreement he had not authority to make, and which would have been inconsistent with his request for a mortgage on the lands, the highest distinct and independent security for the satisfaction of the trust, which could have been given. ...

The remaining insistence of the appellant is, that the receipt given by the appellee and her husband several months after the talcing of the note, expresses that the note was taken in payment of the liability of the appellant, operating a satisfaction or extinguishment of the 'trust. And the further insistence is, that in this respect, the receipt is not open to explanation, contradiction or modification by parol evidence.

Receipts whether for money paid, or for other matter or thing, are regarded as informal, non-dispositive writings, open to explanation, modification, or contradiction by parol evidence.—2 Whart. Ev., § 1064; 1 Green. Ev., § 305; 2 Parsons on Contracts, 555 ; 1 Brick. Big. 860, §§ 809-10. Such a paper may be of a two-fold character — it may be not only an acknowledgment or .admission of the receipt of money or other thing in payment or satisfaction of- a debt, but it may contain a contract distinct and independent, or, as expressed by Mr. Green-leaf, “terms, conditions, and agreements or' assignments.” So far as it imports a contract, it is not open to parol evidence, but so far as it is a receipt, it may be varied or contradicted by such evidence. The evidence clearly manifests, that the note was not taken in satisfaction -or extinguishment of the trust, nor as payment of the liability of the appellant, and that the receipt was intended only as an admission or acknowledgment of the existence of the note and of its acceptance by the appellee and her husband. What seems conclusive upon this point is, that at first the appellant presented a paper in form a receipt for the note, expressing a release of the lands, the execution of which was refused, and upon his continued solicitation for a receipt for the note, it was agreed by the appellee and her husband to sign a receipt, if in it was incorporated a description of the lands on which the lien was claimed; and upon this agreement, the paper containing such description, now produced, was executed. The contention of the appellant rests upon the use of the words in payment, which are supposed to be contractual and incapable of variation by parol evidence. They are not more contractual than they would be if employed in acknowledging the receipt of money. An illustration of frequent occurrence is, that of a vendor of lands, making an absolute conveyance reciting, or by a separate instrument reciting, that the purchase money has been paid. Such recital or acknowledgment is open to explanation, contradiction or modification by parol evidence.—Saunders v. Hendrix, 5 Ala. 224. Another consideration, which may not be overlooked, is, that the lands are described in the receipt. If the note was a payment, a satisfaction of the trust or lien on the lands, why describe them in the receipt? Such description in a note given for the purchase money of lands, implies the intent to preserve a lien on the lands for its payment.—Tedder v. Steele, 70 Ala. 347 ; Chapman v. Peebles, 84 Ala. 283. Unless by force of the receipt, it is not insisted there has been satisfaction of the trust in the lands, and that effect we can not impute to it.

.We find no error in the record, and the decree of the chancellor is affirmed.

Affirmed.