Peck v. Ashurst , 108 Ala. 429 ( 1895 )

HARALSON, J.

When this case was here on a former appeal (101 Ala. 499), its equity, as for any objections then interposed to it by demurrer, was sustained. One ground of demurrer there was, that the bill failed to describe the notes alleged to have been executed for the purchase money, or to show when the same were due, and it was insisted, that the bill, on that account, did not set out, with sufficient certainty, the terms of the contract of purchase, in that it failed to show when the purchase money to be paid by Ashurst; was payable. It averred, that complainant did not know whether either of said notes was in fact executed or not. The recital of the instrument, however, shows that the first one, was in fact executed and delivered to Peck. This ground of demurrer was, for reasons stated in the opinion, regarded as not well taken, but it was added: “It may be, that the averment, simply, that complainant does not know whether the notes were executed or not, is insufficient to excuse a more specific averment of the terms, of the contract, in that it does not show that complainant had done what he ought to have done, to inform himself in the premises ; but we are of opinion that the demurrer does not sufficiently raise the question.” Acting upon this expression, the defendants, on the return of the case to the chancery court, filed a new demurrer to the bill, on grounds set out therein, which was intended to cure the supposed defect in the former demurrer. It will be observed, that we did not decide, that the averment, that complainant did not know whether the notes were executed or not, was an insufficient averment of the terms of the contract, when taken in connection with its other terms, but the expression was it may be, such an averment was insufficient. A close inspection of the contract, however, discloses, that its terms, such as fix the rights and duties of the parties, leaving nothing to negotiation, — the names of the parties, the subject matter of the contract, the consideration and the promise, are fully set out in the writing, and the bill alleges the'purchaser was put in possession of the lands, and so remained, until he died in the fall of 1887. The contention on the part of the defendant is, that inasmuch as the second note referred to in the contract, as the one that complainant will thereafter execute, is not alleged to have been executed, and the date of its payment specified, the contract is too indefinite, to be specifically executed.

It will be observed that the statute of frauds is not pleaded or relied on as a defense in the case, and is not involved in it.

The contract is in writing, and the stipulation as to the payment is, “that when Charles F. Ashurst * * * pays or causes to be paid to me, the $4,000, the .same being the purchase money with interest at ten per cent per annum, then. I promise and agree to make to the said Ashurst the same warranty titles that Burney and wife made to me.” One of the notes provided for, the contract itself alleges was made, but when payable is’Jnot made known ; and the other note, for some reason, was not executed at that time. In our former opinion, it was said, we would, under the averments of the bill, be justified in assuming, that the contract was to “be performed within a reasonable time, and as much earlier as the vendee might choose to perform.” Further consideration induces us to believe that the last is an incorrect statement of the principle referred to, and that the true rule is, as stated by Mr. Greenleaf, that “where no time is expressly limited for the payment of the money mentioned in a special contract in writing, the legal construction is, that it is payable presently.” — 1 Gr. Ev. § 277; McAllister Bros. v. Templeton Bros. in MSS. But in the case before us, whether the note was to be payable at one date or at another, could make no difference to the vendor, so far as the equities are concerned, since it was to bear interest, as a part of the purchase price, at ten per cent from the date of the contract of sale, so that the precise amount to be paid, before the title was due to the purchaser, was as definite without as with a note. It occurs to us, therefore, that whether the last note was given or not is wholly immaterial in the case, except in the aspect, that it might not have been due when the bill was filed, and the defendant was not required to take the money before it became .payable. The presumption is, that if this note was executed and delivered, it was in the hands of the administrator, and, if not payable at the filing of the bill, that was a matter of defense. The point made, if good, would require a court to hold, that the complainant, after having paid all the purchase money under this written contract, would not, in equity be entitled to a specific performance, because of his failure to execute one -of the notes for the purchase money, which, for some undisclosed reason, whether for the accommodation of the vendor or ven-dee, was not executed. The point is too technical to be just, and we will not exercise our discretion, in such matters, so as to allow it to pi-evail. There was no error in overruling the demurrer to the bill.

The objection of laches on the part of complainant in seeking the relief sought in the bill, cannot be sustained under the facts disclosed in this case.

The facts stated in the bill, material to its equity, were either admitted in the answers, or satisfactorily established by the evidence. We refer only to such of them as are questioned. It will not be denied, that where a variance in the allegations and proof is relied on to defeat an action, such variance must be of a material or essential fact. — Gilmer v. Wallace, 75 Ala. 222 ; 1 Gr. Ev. § 67. It is said there is a variance in the proof, in that the bill alleges that Charles F. Ashurst owed the debt and executed the mortgage to Lehman, Durr & Co., whereas the proof shows that Ashurst Bros, were the debtors to that firm. The evidence is, that Ashurst Bros, as a firm, and Charles F. and J. V. Ashurst, as individuals, composing the firm, separately, executed the mortgage. The debt was, certainly, that of the individuals composing the firm, as well as of the firm itself. Besides, the mortgage recites, that the lands here involved were the property of Charles F. Ashurst and were subject to an incumbrance of $4,000, to A. B. Peck. The point is without any merit.

Again it is said, the bill alleges, the deed from Meyer Lehman to complainant was dated the 15th of February, 1889, and the proof shows, that it was dated the 15th February, 1890. Now, of what avail is such a variance in proof as that? The materiality of the proof is, that there was such a deed, and its value was not increased or diminished by the fact that it bore the latter and not the former date. And besides, there does not appear to have been any objection to proof, on account of variance.

Still further, it is objected, that the bill avers that the defendants, as heirs at law of A. B. Peck, were holders of the legal title, whereas it was shown, that before the bill was filed, the heirs had made a partition of the lands of said A. B. Peck, and conveyed, among themselves, — the lands in the bill described having fallen to Carrie R. Ashurst, one of the heirs. The precise allegation of the bill as to this matter is, “That A. B.Peck died intestate, leaving the following children, heirs at law, to-wit, [naming them] and his widow, Sallie Peck, all of whom are over 21 years of age,” and they are, each, with the administrator, very properly made defendants. We fail to see any merit in this objection.

It is denied that the complainant is a purchaser of the mortgage of Lehman, Durr & Co., and it is urged, that he paid and extinguished it, and has no right to assert the right and claim of Charles F. Ashurst, under the same. His right, however, under the bill, was considered and- decided aversely to this contention, on the other appeal, and the deed of Lehman, by its terms conveys to him as purchaser, £ ‘all our right, title, interest and claim in and to the,” the lands in question.

It has been well said by counsel in his brief for appel-lee, “The state of accounts, whatever they maybe, between J. V. Asliurst, surviving partner of the firm of Ashurst & Bro., and Chas. F. Ashurst, is a matter that does not concern the defendants. The right claimed of them in this case, is a right of Chas. F. Ashurst entirely, and it can be resisted only on the ground, that if Chas. F. was alive and hacl filed this bill, it could not be maintained.” Ashurst v. Peck, 101 Ala. 506 ; Wimbish v. M. M. B. & Loan Asso., 69 Ala. 578 ; 2 Story Eq. Juris. §§ 788-90 ; 1 Pom. Eq. §§ 368-72. .

There is no error in the decree as rendered, of which defendant can complain. What was ordered to be ascertained by the register, is certainly important to be known, in adjusting the question of rents, by whom to be paid and for what time, in the final disposition of the accounting. Would it not have been better for defendants to have awaited these matters, reserved by the decree, before complaining? Their objection goes by way of anticipation of injury that may be done them in the end, rather than to any already inflicted. The administrator is certainly accountable for the rents and profits during the time he was in possession of the lands, but whether he is accountable for them after he turned them over to Carrie R. Ashurst, or whether slm is accountable for them, after she gained their possession, we will not now decide, since these questions are not before us. But, that these matters, for anything appearing in the decree, may hereafter be rightly adjusted by the chancery court, cannot be questioned.

Affirmed.

Bkigkell, '0. J., not sitting.