McLester v. Woodlawn Cemetery , 165 Ala. 213 ( 1910 )

ANDERSON, J.

— Upon the former appeal in this case (137 Ala. 283, 34 South. 174, 97 Am. St. Rep. 27), the cause was reversed because of the failure of the bill to aver such facts as would enable these complainants to maintain this bill, upon the theory, that a sufficient demand and refusal was not shown as to the governing body of the respondent corporation or the stockholders thereof. Whether the amendment, after the reversal of the case, was sufficient to overcome the defect pointed out in the former opinion, we need not determine, for conceding, that it was, the chancellor must be affirmed for sustaining the demurrer to the bill as amended. The bill is, in effect, one to redeem the property sold under the deed of trust, and was filed more than two years after the sale, and shows upon its face, that the complainants nor the corporation are entitled to redeem. The fact that Johns agreed with Van Hoose, when he purchased the notes, not to proceed with the sale could not toll the delay in taking action looking to a redemption of the property. Whether Johns so promised Van Hoose or not, he made the sale, it was made openly and publicly and-the complainants knew of it, or at least the bill does not negative notice of same. They then hail two years within which to compel the corporation to redeem or to do so themselves, in the event the corporation failed or refused. The bill avers a collusion on the part of Johns and the president to acquire the property, but it does not show, that any fraud on their part relieved the complainants of taking action looking to a redemption. They were not misled into the belief that action on their part was unnecessary, upon the idea that the corporation intended or expected to .redeem. On the other hand, every act averred shows that the corporation did not intend to redeem, and they were put upon notice of the fact that they must compel action, or take it themselves in case of a failure to have the governing board or stockholders act. They were not lulled by Johns and Erswell into the belief that action on their part was unnecessary, but every fact set up shows that Johns and Erswell had no idea of redeeming for the corporation, or that Johns was acting for the corporation in acquiring the Van Hoose debt or in making the sale. While the foregoing treats the bill as one to redeem, the result would be the same by treating it as a bill to declare a constructive trust, which seems to be its denomination in the prayer for relief. The bill does not' show that Johns was acting in a fiduciary capacity, so as to impress a trust upon the transaction. Nor does il charge fraud on his part in making the sale. It is true, it charges that he violated an agreement with Van Hoose, but this is no charge of fraud connected with the sale. The fraud or collusion charged, as to Johns, was in preventing a redemption by the officers of the company, and- of which, as shown by the bill, J. A. Van Hoose had full knowledge; and that he was acting for the complainant as well as himself, and notice to him must be imputed to them, and they should have taken action within two years of the sale or within a year after the knowledge of the alleged fraud. Neither can a trust be implied from the mere breach of Johns’ promise not to sell until 1898, so as to render the sale void, and constitute him the holder of the property for the benefit of the company. The bill does not aver that Johns extended the maturity of the debt or changed the law clay of the instrument so as to render the sale premature and therefore void, but sets up the breach of a promise not to have the power exercised until 1898. A violation of such an agreement did not render the sale void, so as to constitute Johns and Erswell, who held thereunder, trustees for the company, but which would, at most, have given the company the right to disaffirm the the sale within two years thereafter. — 4 Mayfield’s Dig. p. 706, § 304. The debt was due, its maturity was not extended, and the sale was made by the trustees to satisfy same. The complainants’ agent knew all the facts, and was put on notice that the officers of the company did not intend to redeem or take steps to disaffirm the sale, notwithstanding he had informed them of all the facts, now complained of by the complainants; and they are in no position to redeem or to- set the sale aside after sleeping on their rights for over three years after the sale, and after notice to J. A. Van Hoose of the alleged fraud for more than a year before the bill was filed. The fact that Van Hoose et al. had filed a previous bill, and failed, did not relieve these complainants of their delay. Nor is it shown that their bill is within- the lis pendens of the other one. We are of the opinion that the bill is without equity, apart from the question of laches. The chancellor did not err in disallowing the last amendment.

The decree of the chancery court is affirmed^

Affirmed.

Dowdell, C. J., and Sayre and Evans, JJ., concur.