Betts v. Sykes , 82 Ala. 378 ( 1886 )

STONE, C. J.

— The wives of complainant and defendant are sisters, and are the only children of John M. Swoope, deceased, who died intestate. Each of them succeeded to an estate at his death, which they would hold as tenants in common, and as ■ statutory separate estate. Joint tenancy is abolished under our statutes. As we understand the averments of the bill, there was no administration on. the estate of Mr. Swoope. The two sisters, being married women, with their husbands met together, and, by written contract, agreed on a division of the property. The agreement was signed by all, and properly witnessed, but contains no words of release, grant, or conveyance. It left the legal title where the descent from Swoope had placed it.

By the agreement of division, Mrs. Betts was to- have certain specified real estate, and pay Mrs. Sykes five hundred dollars ; and Mrs. Sykes was to have certain other specified real estate, “and all other property, real, personal and mixed, and dioses in action belonging to said estate. • • Said A. J. Sykes and Emma C. Sykes also agree to pay all the debts of said estate, and • • bind themselves to said Edward C. Betts and Virginia Betts that they will save them harmless against any and all liability for any and all debts owing by the estate of J. M. Swoope, and that the said Sykes and wife will pay the same themselves.”

As we understand this agreement, it was intended to take the place of administration, division, and distribution of the Swoope estate, and to make a full settlement of the succession. It is, in form, a single contract, and not two or more separable contracts, blended in one writing. It imposed certain obligations on each, and conferred certain rights .on each. No data, are furnished for measuring the individual benefits or burdens which would fall to the lot of either of the contracting parties. We are not informed which of the sisters obtained lands of greater value, nor whether the debts of the estate exceeded in value, or foil short of that of “ the other property, real, personal and mixed, and dioses in action,” which Mrs. Sykes obtained in the division. The natural interpretation of the agreement is, that computing the net benefits each sister received in the entire division, Mrs. Betts received five hundred dollars more than her share, and Mrs. Sykes that much less than her share. We are thus left in doubt and uncertainty, whether the promise to pay five hundred dollars was based on an agreed difference in the value of the lands; whether it was the difference between the “ other property ” which went to Mrs. Sykes in the division, and the debts of the estate she assumed to pay and did pay ; or whether it was the agreed resultant of these two factors combined.

The equitable doctrine of enforcing the vendor’s lien, for unpaid purchase-money of lands sold, has been steadfastly maintained in this court, in its full strength, and it is not our intention to weaken or impair that doctrine. — Bunkley v. Lynch, 47 Ala. 210; Buford v. McCormick, 57 Ala. 428; Bryant v. Stephens, 58 Ala. 636; Terry v. Keaton, Ib. 667; Norman v. Harrington, 62 Ala. 107; Newbold v. Smart, 67 Ala. 326; Young v. Hawkins, 74 Ala. 371; Flournoy v. Harper, 81 Ala. 494; 1 So. Rep. 545. The principles declared in some of these cases probably go beyond th.e doctrine declared in other, jurisdictions. — McCandlish v. Keen, 13 Gratt. 615; Meigs v. Dimock, 6 Conn. 458; Chapman v. Beardsley, 31 Conn. 115. We will adhere to our rulings.

The principle we have been discussing, however, has no application to the sale of personal effects. To come within the principle, the debt must be contracted in the purchase of real estate, and no other consideration must, in the slightest degree, enter into it. If it be uncertain whether the debt sought to be collected rests alone for its consideration on the lands on which the bill seeks to fasten the lien, or whether it rests on something else, or on the lands and something else, then the doctrine can not be applied, for most obvious reasons. Much less can it be applied when, as in this case, we have no means of ascertaining whether difference in the value of the lands interchanged and partitioned was the consideration of the promise, or whether there was, in fact, any difference in the values. Stringfellow v. Ivie, 73 Ala. 209; Williams v. McCarty, 74 Ala. 295; 3 Pom. Eq. § 1251.

If there be anything in the argument, that Mrs. Sykes could maintain ejectment for the land, and thus cast on Betts and wife the necessity of becoming actors for specific performance, in which event they would be required to do equity as a condition of relief; the answer is, that is not this case. The present case must fail, because it does not make a case for the relief it prays.

The decretal order of the chancellor is reversed, and a decree here rendered, sustaining the fourth, fifth, and sixth grounds of demurrer.

Reversed and rendered.