Heard & Lee v. Heard

MCCLELLAN, J.

On February 8, 1899, George Hearxl, the complainant (appellee), was in possession of the lands described in the bill. This possession was under a written contract with the American Freehold Land Mortgage Company, then holding the legal title thereto. The report of the appeal will contain a copy of that instrument. On the aforesaid date, the appellee, being then indebted to Heard «fe Lee (the appellants), executed to them the following transfer, indorsed on the back of the contract, of his interest find rights in his contract with the mortgage company: “This is to certify that I have this day for value rec’d transferred to Heard <fe Lee my entire rights and interest invested in me in the within paper and this day do release to the said Heard <fe Lee all my rights a (as) landlord to the within described real, estate.” On the same day appellee executed to Heard «& Lee an instrument of which the following is the substance: “Know all men by these presents that I, George Heard, have this day transferred to the firm of Heard and Lee my entire interest as landlord to a certain place on which T now live located in Tallapoosa county, state. The consideration of said transfer' being a certain indebtedness to the said firm, which I now owe, now in case I, George Heard, paid the said Heard <fe Lee the amount in full which I now owe them or which I may owe them during the year 1899, in that event the said transfer of my rights as landlord this day transferred to said Heard «fe Lee shall be null and void, and this contract they now hold shall be delivered to me, George Heard. In case I, George Heard, shall fail to pay the said Heard & Lee the indebtedness as above mentioned or any part of same in that event the transfer of my rights of landlord shall remain in full force and effect.” The transfer of the contract with the mortgage company appears to liave been recognized by that company’s agent on February 10, 1899. On February 8, 1899, appellee rented the lands in question for the year 1899 from Heard & Lee. Appellee failed to pay the indebtedness as stipulated, whereupon appellee was ejected from the possssion of the lands in suit. In 1902 the mortgage com-X>any conveyed to Heard & Lee the lands described in its contract with George Heard. Prior to the institution of this cause George Heard sought relief in equity on the theory that the transfer stated was procured by fraud. Belief was denied; the chancellor suggesting in his opinion that George Heard’s remedy was by bill to protect and enforce his rights as a mortgagor to Heard & Lee as mortgagees. The .present bill proceeded on that theory, praying an accounting between the parties and redemption of the lands.

The equity of the bill is undoubted. While the contract between George Heard and the mortgage company was phrased as for a leasing, yet its whole tenor — with particular reference to the right assured Heard to take title by''a nominal payment plus the taxes, provided he had annually paid the sum stipulated as for rent— show's the engagement to have been one of conclitionar, contingent, purchase and sale. The interest with which George Heard became invested under the contract was such as could be made the subject of mortgage: — 1 Jones on Mortg. § 136.

In equity the transaction between appellee and appellants of February 8, 1899, was as the learned chancellor pointed out in his deliverance in the former cause one of mortgage — a securing of a then subsisting and a later to be incurred indebtedness by Heard to Heard & Lee. There has been, when this bill was filed, no enforcement of their rights' as mortgagees.

In this state of relation between the parties and to the lands in question, the act of Heard & Lee in paying-off the mortgage company and taking title in their own names did not extinguish the equitable rights of George Heard — among which was his equity of redemption.

The former bill Avas filed in 1903, and dismissed in 1905. This bill was filed in 1908. The equity of redemption was not then barred. We do not think .the appellee can be concluded by laches. The demurrers were properly overruled.

.The unreversed judgment in the unlawful detainer suit (converted into a contest of title in the circuit court by the invocation of the statutes [Code, § 4283-5]) did not conclude the matters and issues of a purely equitable nature, upon Avhich equity’s jurisdiction is invoked by this bill. — Harper v. Campbell, 102 Ala. 342, 14 South. 650. The special plea filed September 18, 1908, to that effect, was hence without merit or avail.

The appellants question the court’s ruling on their exceptions to the report of the register in this manner only: “The court erred in overruling respondents’ objections and exceptions in (to) the register’s report on reference and confirming said report.” Under such an assignment, if any of the exceptions to the report were properly overruled, the appellants can take nothing thereby. Such is the established rule as to like assignments assailing rulings on two or more pleas. — Thompson v. N. C. & St. L. R. R. Co., 160 Ala. 590, 49 South. 340, among others. The reason and necessity of the rule is emphasized Avhen matters of extended accounting on a. reference before the register are the real subjects of complaint in this court. Not all (if any) of the exceptions to the register’s report in this cause are well taken.

The first one is that the appellee should have been charged for undelivered lint.cotton ait the highest market value thereof between the time it should have been delivered and the date of the reference. Such is upon proper occasion the rule in cases of conversion. But, where the engagement unobserved is to deliver a certain article at a particular time and place, the measure of the damages is the market value thereof at that time.

The decree is affirmed.

Affirmed.

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