Summary
Appeal from Jackson Chancery Court.
Heard before Hon. W. H. Simpson.
Bill by E. H. Caldwell against D. K. Caldwell and others. From decree dismissing the bill, complainant appeals.
The history of the case may be briefly stated as follows : Appellant did business in his father’s name, one Hamlin Caldwell, and became involved in the amount of more than $27,000. Before his death Hamlin Caldwell paid off all this indebtedness but $16,000, and gave a mortgage covering his landed estate to pay this balance. After Hamlin Caldwell’s death, D. K. Caldwell became administrator of his estate, and in order to. make a settlement of his administration the heirs entered into the following agreement: “This agreement, made and entered into by and between D. K. Caldwell, S'. Almena Caldwell, G. B. Caldwell, and E. H. Caldwell, witnesseth that we hereby make the following agreement with each other: (1) That D. K. Caldwell shall make a final settlement of the administration of the estate of H. Caldwell, deceased, taking no account of the lands formerly belonging to the said estate, nor the rents due from said land, except for the years 1895 and 1896, and likewise taking no accounts of the debts which are charged upon said lands covered by the Butler Mortgage. (2) Said D. K. Caldwell shall account for the rents for the years 1895 and 1896, and charge each heir with the amount of rents received by him as so much advanced and paid to the heirs so receiving said portion or rent, crediting himself with the amount disbursed by him, if anything, out of his individual means or money received from said estate otherwise than above excepted as the proceeds of the land, and that he shall likewise charge each heir on their settlement any advancement by Caldwell to said heir, but no debt that may be due from any one of said heirs of the estate of J. Caldwell, which shall be charged as against any interest which said heir may have in the assets of said estate, or which may have been or may hereafter be derived directly or indirectly from the lands formerly belonging to the estate of H. Caldwell, which were sold and conveyed by J. E. Butler to Sallie B. Brown. (3) It is further agreed that W. D. Bridges shall select one man, or two men, as he may think best, to value all of the real estate formerly owned by H. Caldwell, and which was conveyed by J. E. Butler to Sallie Brown, and :to value each tract or lot separately, and that the man or men so appointed shall take from the whole tract; or from the different tracts or parcels of tracts, an amount of land sufficient in value, which, according to their best judgment, will be sufficient within three years from the date of this agreement to yield the amount which may be necessary to pay the debt to Sallie Brown and repurchase the land, said land to be selected so as to cause the least detriment to the whole tract, which said land, when so' set apart to pay said debt, shall be placed in the custody of a trustee, to be by him managed and sold at any time within three years, and out of the proceeds to pay said Sallie B. Brown the debt, or so much thereof as the proceeds of said land will pay. (Here follows instructions as to how the trustee shall manage, and an agreement by each to sign a conveyance to the person purchasing from the trustee at the price agreed on by him.) (4) Of the land remaining after said sale has been made to pay said debt, the remainder shall be divided into four parts, each part of which shall be valued by said appraisers aforesaid, and each of said four heirs shall be entitled to one of the four parts so set apart, and shall have that portion as their part which may be designed by said appraisers, if said heirs shall be unable to agree upon their respective parts so set apart; but each heir shall take said one-fourth portion of said land charged with whatever balance may be ascertained to be due on the settlement of D. K. Caldwell in the probate court from prior advancements or paid him from said estate, and the same shall be subject to said debt before the title can vest in him or her, but the whole shall be subject to the prior debt or incumbrance of Sallie B. Brown. (5) If the amount paid shall not be sufficient to pay the same, then said trustee may take a portion of the land off of each of the divisions hereinbefore stated, as nearly equal as may be convenient, and to sell the same until an amount sufficient has been realied to pay said debt to Sallie B. Brown. (6) The amount found due, on the settlement of said D. K. Caldwell in said probate court, from each of the heirs of the estate is hereby declared a lien and charge on the interest set apart to such heir, and in default of payment said interest may be sold, and the amount remaining after paying said debt shall go to the heir aforesaid.”
On the settlement appellant was found due the estate $27,588.55; G. B. Caldwell, $3,122.02; D. K.. Caldwell, $1,827.74; and S. Almena Caldwell, nothing. For some reason not appearing a sale was not made of the lot set apart to pay off the mortgage, and the incumbrance continued from year to year, being mortgaged first to J. E. Butler, then to Sallie B. Brown, and finally to A. H. Moody. In 1904 certain creditors of appellant and G.. B. Caldwell sought to subject their interest in the land to certain judgments amounting to something over $10,000. All of the heirs, as well as the mortgagee, were made parties to this suit, and an agreement was reached amoung the parties by which $2,500 was agreed to be accepted in satisfaction of the judgment, and the lands were sold to pay the amount found due on the Moody mortgage, the compromise judgment,' and the cost of the suit, and.a sale was made under a decree of the chancery court in January, 1905, and Moody purchased the lands at the sum of $16,000, paid off the mortgage, and paid the balance into court, and shortly afterwards deeded said land to D. K. Caldwell and took a mortgage on it for the purchase money. About April, 1908, appellant and D. K. Caldwell became involved in a controversy and agreed upon an arbitration, agreeing each to leave to James W. Moody the amount that E. H. Caldwell should pay to A. H. Moody on the debt owing to Moody, and agreeing to quitclaim whatever interest D. K. Caldwell might have in the part set apart for E. EL Caudwell. The arbitrators declined to act, and later E. H. Caldwell appeared before him with a statement prepared by himself and requested the arbitrator to sign it, but he declined to do so, and after drawing a line under the figures furnished by appellant he wrote as follows: “According to the figures E. EL Caldwell furnishes me, he would owe a balance of $600; but D. K. Caldwell’s claims will not figure that way” — and signs his name, and this in the absence of D. K. Caldwell. Thereupon E. H. Caldwell tendered $600, which was declined, where upon the bill was filed to enforce the arbitration. The bill further alleges that the deed from A. H. Moody to D. K. Caldwell was made in open violation of an oral agreement made and entered into the day of and just prior to the foreclosure sale in the case of the creditors against the two Caldwells, Avhereby it is alleged that A. H. Moody agreed to buy the lands and give each of the heirs five years Avithin Avhich to redeem their respective portions. The bill was amended, and relief asked on the theory that D. K. Caldwell was equitable assignee of the said A. H. Moody, and that the appellant and other heirs might come in after an accounting and redeem their several portions of land.
Under the facts in this case complainant has the right to recover his part of the land by making equitable contribution. — Jones v. Matldn, 118 Ala. 341; Jones on Mortgages, sec. 1089, et seq., Pom. Eq. sec. 1220. .
The case of Wood v. Wood, 134 Ala. 557, is conclusive upon complainant in this case.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
