Smith v. Spencer

73 Ala. 299

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

SOMERVILLE, J.

— Tlie bill is filed to enjoin an ejectment suit brought by the appellant, Smith, in a court of law. Its-equity is not, and can not be questioned. When Miller sold the lands in controversy to Thornton, he retained the legal title in himself, and placed his vendee in possession under a bond for title, taking his note for the unpaid purchase-money. Mrs. Spencer, then Miss Davis, purchased Thornton’s interest in the lands, taking possession by her tenants, and also-became the transferee of Thornton’s note for the purchase-money, thus becoming, according to the averments of the bill,, the owner of uperf dot equity in these lands. Being thus placed,, under a written contract of sale, in the attitude of a vendee in possession, who had paid the entire purchase-money, it is clear that, if the transaction was free from fraud, the complainant was entitled to a conveyance of the land from Miller, and, therefore, Smith, who had purchased nothing except Miller’s naked legal title at sheriff’s sale, became also a mere trustee of such title, holding it for Mrs. Spencer, as the eestui qué trust, who could demand a conveyance of it at any time.

The defense made is based chiefly upon two points, each of which is argued earnestly, and at length:

It is first insisted that the transfer of the Thornton note of six hundred dollars, given for the last installment of purchase-money, which was made by Miller to Mrs. Spencer in February, 1872, she then being unmarried, was fraudulent, because it •was, in fact, voluntary and without valuable ponsideration. The evidence satisfies us that the contrary is true. The consideration for the transfer of the'note was based on a valuable and sufficient counter-consideration. Miller owed Mrs. Spencer at that time over two hundred dollars, and her minor brother and sister each about the same sum, which latter sums she, then being sui juris, expressly agreed to assume. This undertaking on her part did not purport to release Miller, nor did it need any aséent on the part of the beneficiaries to make it binding. It was an original promise made to Miller-to pay money to a third person on an executed consideration. It is not pretended that it is at all affected by. the statute of frauds.

It is further urged, that there is a fatal variance between the allegata of the bill and the probata, as to the consideration for the transfer of the Thornton note to Mrs. Spencer. We are of opinion that this objection also is not well taken. The bill avers that Miller was legally indebted to the complainant, “as shown by his settlement, in the probate court of Greene county, of the estate of David Coleman and William Davis,” and “m part payment of his said indebtedness,” the‘said Miller transferred the note in question to her on the 14th day of February, 1872, and that the complainant received this note “as so much money.” The essence of this averment is the existence of an indebtedness due by Miller to complainant, and the transfer of the Thornton note as so much money, at its face value, in p>cvrt payment of this indebtedness. The reference to the probate settlement was only in aid of this description, and may be regarded as entirely unnecessary, being mere surplusage.

The proof does not vary substantially from this allegation. The record of the probate proceedings furnishes the items which constitute the basis of the consideration moving to Miller from Mrs. Spencer. Tie owed, her personally over two hundred dollars, and twice as much more to her minor brother and sister. The latter sum she agreed to assume, -and this amount thus became legally a debt from Miller to her, contingent, it is true, upon its future payment, but nevertheless it was debitram. in presentí, sol/oendum vn futuro. These details of evidence, showing the connection between Miller’s indebtedness to her and the items referred to in the settlement, need not have been pleaded. The averment of indebtedness was sufficient without any statement as to how it originated.

The other questions discussed do not affect this conclusion, and need not, therefore, be considered.

The decree of the chancellor should, in our opinion, be affirmed.