Opinion
8 Div. 485.
October 5, 1933.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Bill in equity by Cora Bradshaw and William Bradshaw against Treeby Michie Shaw, Eunice Michie Dean, Winston T. Michie, Elizabeth M. Michie, Mollie Sykes Michie, and H. C. Michie, individually and as trustee for Mollie Sykes Michie. From a decree overruling a demurrer to the bill, respondents appeal.
Affirmed.
Owners of a large body of land, known as the Garth lands, through trustees with full authority, sold the lands with stipulations looking to a resale in parcels by the vendees, and a release of such lands from the purchase-money mortgage on specified conditions.
The purchase-money mortgage was foreclosed under power of sale and the property purchased by the mortgagees, who thereupon brought suit in ejectment against the heirs at law of a purchaser from the vendees to recover the parcel or parcels of land in suit.
On statutory petition of the defendants in ejectment setting up an alleged equitable defense, the cause was transferred to the equity docket (see Code 1923, § 6490).
Thereupon, the present bill was filed for cancellation of the mortgage and foreclosure deed as to this land.
The present appeal is from a decree overruling demurrers to the bill.
We here set forth in extenso the pertinent averments of the bill:
"Par. 7. On July 17, 1920, H. Clay Michie, as attorney-in-fact for the said children of Eunice Sykes Michie, and acting under the powers-of-attorney for said children, and with full authority thereunder, and Winston F. Garth, as trustee of Mollie Sykes Michie, and with full authority under his said trusteeship, (hereinafter called the vendors) contracted in writing to sell to Lamar Penney, E. D. Whitman and Otto Moebes (hereinafter called the vendees), the said Garth lands. The said contract was a culmination of former negotiations whereby the vendees contracted to buy the said lands from the vendors, and the vendees prior to that time had had all or a part of said lands platted. The vendors and the vendees during the negotiations leading up to the execution of said contract and at the time of the platting of the said lands, had in view a re-sale of the said lands by the vendees to their purchasers. This contract was in writing, and it contained the following provision fixing and determining the rights of the purchasers who contracted to purchase from the vendees on July 17, 1920:
" 'Fifth: It is understood and agreed that any sale made by the parties of the second part, of any of said lands, for cash, the same is to be received by them and paid over to the parties of the first part, whereupon said parties of the first part agree to release from the mortgages to be given by the parties of the second part to the parties of the first part, the land so sold for cash, and on any sales made by the parties (of) the second part of said lands for cash and part on time, if said sales are at any aggregate price of not less than fifty dollars per acre, as the same shall be paid out by the vendees of the parties of the second part, and the proceeds thereof paid to the parties of the first part, the parties of the first part are to release to said purchasers respectively the lands so sold to them by the parties of the second part to the parties of the first part.'
"Par. 8. On to-wit: August 2, 1920, the vendors and vendees entered into another contract which contained provisions fixing and determining the rights of purchasers of the vendees who purchased any part of the said lands subsequent to the 17th day of July, 1920. The said provisions are as follows:
" 'Third: It is understood and agreed by the vendors and the vendees that any sales made by the vendees subsequent to the 17th day of July 1920, shall be governed by the following provisions, which are for the protection of the vendors and the vendees and the purchaser or purchasers at any such sale.
" '(a) The vendors agree to release from the operation of any mortgage executed to them by the vendees, any land sold subsequently to July 17th, 1920, provided that they are paid for said land at an aggregate price of $50.00 per acre. They further agree that vendee shall have the right to sell any part of said land remaining unsold on terms, provided the vendees pay to the vendors any initial payment made on the lands so sold, on terms and provided, further that they endorse to the vendees the notes evidencing the deferred payments, executed to the vendees by the purchaser or purchasers, and any mortgages or other form of security taken to secure the balance of the purchase money.
" 'They further agree that when any purchaser or purchasers who buy upon terms, pay to the vendees an amount equal to fifty dollars per acre of the aggregate acreage bought by said purchaser or purchasers, on term, that they will release to such purchaser or purchasers, the land so purchased, from the operation of the mortgage to be executed to them by the vendees, but not for any balance due the vendees by the purchasers, provided that the vendors are paid interest on such deferred payments from the date of such sale or sales to the time that they are paid said aggregate sum of fifty dollars per acre for the land so purchased, provided, always, that the vendors are paid said aggregate sum of fifty dollars per acre, if said sales are for cash, and said sum of fifty dollars per acre and the accumulated interest thereon when said sales are on terms on or before the maturity of the last note which is to be executed by the vendees to the vendors, evidencing the last payment on the purchase price of the lands hereinabove described.'
"This contract is of record in the office of the Judge of Probate of Morgan County, Alabama, in Deed Record 272 and at page 324. H. Clay Michie, as attorney-in-fact for the said children of Eunice Sykes Michie, was authorized under his said power-of-attorney to make said contract for said children, and Winston F. Garth as trustee for Mollie Sykes Michie was authorized by his said trusteeship to make such contract in her behalf.
"Par. 9. On the 20th day of July, 1920, the decedent contracted with the vendees in writing to purchase the land involved in this suit, and the said contract contained the following provisions, in which said land was described, and which fixed the terms and conditions of said sale:
" 'State of Alabama, Morgan County.
" 'This contract and agreement, made and entered into on this, the 20th day of July 1920, by and between, Otto Moebes, Lamar Penney and E. D. Whitman, as Parties of the First Part, and hereinafter so designated, and Hugh B. Bradshaw, Party of the Second Part, and hereinafter so designated, by which it is mutually contracted and agreed as follows: (Here follows stipulations showing sale and purchase of the lands in suit, 13.303 acres, at a gross price of $1529.85 on terms shown in paragraph 3 below.)
" '3. It is agreed between the Parties hereto that the said Party of the Second Part has this day, in hand paid to the said Parties of the First Part, the sum of $152.98 Dollars, as part payment of the consideration hereinbefore named, and has this day executed his 4 promissory notes numbered from one to 4 inclusive to said Parties of the First Part for the balance to-wit $1376.87. Note No. 1, for 229.47 Dollars, and due 1st day of 1921. Note No. 2, for 382.46 Dollars, and due 1st day of 1922, Note No. 3, for 382.46 Dollars, and due 1st day of 1923, Note No. 4, 382.46 Dollars, and due 1st day of 1924, said notes to draw interest at the rate of 8 per cent per annum from date and said interest being payable annually.'
"The decedent on or about said day and date paid to the vendees the sum of $152.98, and executed his notes for the deferred payments under the terms of said contract.
"Par. 10. On or about January 1, 1921, the vendors executed to the vendees a warranty deed to all of the said Garth Lands, and the vendees in turn executed to the vendors a mortgage on said lands, which contained the following provisions:
" 'The mortgagers will assess and pay the taxes for the year 1921. It is agreed that certain purchasers purchased a part of the land herein described between the 17th day of July, 1920, and the 1st day of January, 1921, and paid thereon, ten per cent of the purchase price, and agreed to pay the balance in four installments as follows: Fifteen per cent on January 1, 1921, Twenty-five per cent on January 1, 1922, Twenty-five per cent on January 1, 1923, and Twenty-five per cent on January 1, 1924, with interest on each deferred payment from August 15, 1920, said interest payable on the 1st of January of each year thereafter.
" 'It is further agreed by the mortgagees that the fifteen per cent maturing on January 1, 1921, may be extended to January 1, 1922, upon the payment of all interest due upon all deferred payments, under the contract of purchase.
" 'The mortgagees further agree that any purchaser who has paid ten per cent of his purchase price on or before January 1, 1921, and whose deferred payment of fifteen per cent due and payable on January 1, 1921, is extended until January 1, 1922, may at any time, intervening between January 1, 1921, and January 1, 1922, pay said deferred payment of fifteen per cent, by paying the principal thereof, and the interest to the date of such payment; and in the event such payment is made before January 1, 1922, the mortgagors shall have the right to execute to such purchaser a deed conveying the property purchased, and in that event they shall take a mortgage for the deferred payments, and upon the delivery, transfer and assignment of said mortgage and the note secured thereby to the mortgagees herein, and the payment of fifteen per cent deferred payment, and the interest thereon, the mortgagees agree that they will release the land so purchased from the operation of this mortgage, but, provided however, that if such purchaser does not pay the fifteen per cent deferred payment before January 1, 1922, then he shall pay the fifteen per cent deferred payment, together with interest thereon, and an amount equal to one fourth of the purchase money, and the interest thereon, in addition thereto, and in that event the said Lamar Penney, E. D. Whitman and Otto Moebes, shall be authorized to execute to such purchaser a deed and take from him notes evidencing deferred payments, which shall be secured by mortgage covering the land included in the deed, and said notes shall be of equal amounts, and be due and payable in one, two years, after January 1, 1922, and upon the delivery or transfer and assignment of said notes and said mortgages of the mortgagees, and the payment to them of a sum equal to the fifteen per cent with the interest thereon, and the twenty-five per cent payment, with the interest thereon, they will release the lands included in said deeds from the operation of this mortgage.
" 'It is further agreed that as to any of this property which has been sold by Lamar Penney, E. D. Whitman and Otto Moebes, and on which twenty-five per cent cash payment has been made, and paid over to the mortgagees, and on which the purchaser of said property has executed mortgages for the balance of the unpaid notes, that upon the transfer and delivery of said notes and mortgages securing the same, to the mortgagees herein, that said mortgagees will release and discharge from this mortgage, those tracts, or parcels of land so sold.'
"Par. 11. On or about January 1, 1921, the vendees (with their wives) executed to the decedent (Bradshaw) a warranty deed conveying to him the land he had contracted to purchase, and at that time the decedent paid to the vendees the installment under said contract then due, and he executed to the vendees his three promissory notes in the sum of $382.46 each, due on January 1, 1922, January 1, 1923, and January 1, 1924, respectively, and to secure the payment of the said notes he executed to the vendees a mortgage on said land (in which the complainant Cora Bradshaw joined), and he paid each said notes on or about their maturity dates, and the vendees thereupon surrendered the said notes and the mortgage to the decedent.
"Par. 12. The vendees continued to hold the notes and mortgage of the decedent, as they did in cases of other purchasers, and with the said notes and mortgage in their possession they made collections and remittances to the vendors, and the complainants aver the vendors knew the decedent had purchased the said land from the vendees; they knew he was making payments on the contract and notes and mortgage, and knew the vendees were remitting payments to them of collections on said land, and notwithstanding this knowledge they permitted the vendees to retain the notes and mortgages of the decedent and to collect from the decedent thereon, and that they thereby waived the provision in their said mortgage that the notes and mortgage of the decedent should be transferred and delivered to them.
"Par. 13. The complainants further charge that the vendees paid to the vendors large sums of money, aggregating between sixty and seventy thousand dollars, which they had collected from the decedent and/or other purchasers of parts of the said Garth Lands.
"Par. 14. The complainants further charge that the said vendees paid to the vendors all sums which the decedent paid to the vendees for the said land which he purchased; if they are mistaken in this averment they aver in the alternative that the vendees paid to the vendors more than $50.00 per acre, with all interest thereon, for the said land, in accordance with the contract between the vendors and the vendees of August 2, 1920, which fixed the rights of the decedent as to the land he purchased.
"Par. 15. The complainants are informed and believe, and upon such information and belief, charge that the vendors by H. Clay Michie, as attorney-in-fact, and Winston F. Garth, as trustee, as aforesaid, actually executed a release of the land the decedent purchased, from the operation of said mortgage of the vendees to the vendors, and that said release was delivered to the vendees, but that said release was not delivered to the decedent, or if delivered, was lost or mislaid by him. If mistaken in this averment, they aver in the alternative that the payments which the vendees made to the vendors, as charged in paragraph 14 operated to discharge the said land from the lien of said mortgage.
"Par. 16. The negotiations had on or about January 1, 1921, between H. Clay Michie as attorney-in-fact, and Winston F. Garth, as trustee, as aforesaid, and the vendees and the decedent and other purchasers of the vendees, were had at the office of the vendees Lamar Penney and E. D. Whitman, and the said Michie and Garth actually participated in said negotiations and in the closing of the contract with the decedent, whereby he received his deed and executed and delivered his notes and mortgage to the vendees, and the complainants charge that the said Michie and Garth acting in their representative capacities, authorized the decedent and other purchasers of the vendees to make payment on the lands they had purchased to the vendees, and that the decedent, pursuant to said authority, continued to make his payments to the said vendees until he completed payment for said land. They further charge that the vendors had been previously paid the $152.98, which the decedent paid to the vendees, and that during the aforesaid negotiations they were paid the installment of $229.47, by the vendees, which the decedent paid to the vendees during these negotiations. They further charge that the defendants by this act, or by these acts, upon the part of the said Michie and Garth thereby waived the provision in their mortgage from the vendees that the notes and mortgage of the decedent should be transferred and delivered to them, or in the alternative that they thereby estopped themselves from claiming that the land purchased by the decedent was not thereby discharged from the said mortgage.
"Par. 17. The defendants are claiming the said land under the foreclosure deed of the mortgage of the vendees, and they instituted a suit in ejectment to recover said land from the complainants, which cause was transferred on motion of the complainants to the equity side of this Court.
"Par. 18. The complainants are in the peaceable possession of the land involved in this suit."
The bill prayed that the court decree the lands in suit were released from said mortgage; that the mortgage and the foreclosure deed be canceled as to these lands; that the title be quieted in complainants. There was prayer for general relief.
The demurrers were as follows:
"Come the defendants and demur to the complainant's bill of complaint filed in this cause, and as grounds of demurrer assign the following, separately and severally:
"1. For that there is no equity in said bill.
"2. For that under the averments of said bill, only legal title is attempted to be shown in the complainants upon the compliance with certain conditions which said conditions, according to the facts set forth in said bill of complaint, have not been complied with, nor met by the said complainants, nor their predecessors in alleged title.
"3. For that the matters alleged in said bill are insufficient to show an estoppel on the part of the said defendants as a matter of law or equity from asserting their legal rights.
"4. For that there is nonsufficient averment of fact that the defendants or their predecessors, Garth and Michie, styled 'Vendors' knew any thing of the alleged contract between Penney, Whitman and Moebes and complainants or complainants' predecessors, or were bound by any alleged agreement or contract between the said Penney, Whitman Moebes and the said complainants.
"5. For that under the averments of the bill of complaint, the said complainants were chargeable with notice of what appeared on the face of the writing by which the said Penney, Whitman Moebes claimed the right to own and the right to sell to the said complainants the said property in controversy.
"6. For that the duty was upon the said complainants to inquire into and examine the title of said Penney, Whitman Moebes, and under the facts alleged in said bill of complaint, said complainants were charged in law with notice of every fact to which this examination would have led, and under the averments of said bill such an examination would have led to notice and knowledge of the superior right and title of the said defendants.
"7. For that no right is shown in Penney, Whitman Moebes to act as their own principal in the matter of sale and collection, and at the same time act in the same capacity, as alleged agents of Garth-Michie, the alleged original vendors.
"8. For that the alleged collections by Penney, Whitman Moebes were in their capacity as principal, namely, original payees in the said note and mortgage given by the complainants' predecessors, and they were not acting as agent of Garth-Michie, the original vendors.
"To paragraph 7 the defendants assign all of the above demurrers, and the following:
"9. For that a positive duty on Penney, Whitman Moebes is shown to have been required under the alleged contract, and without a compliance on their part with such provisions of the contract, there was no duty on the part of the said defendants or of Garth-Michie to release said property from their mortgage.
"To paragraphs 8 and 9, the defendants assign all of the above demurrers, numbered from 1 to 9, and add the following:
"10. For that the original contract required transfer and assignment of the original notes received by Penney, Whitman Moebes, after their due endorsement to the said Garth-Michie, and no averment is made that the same were so transferred or assigned.
"11. For that said paragraphs fail to allege a specific payment and application of money by the said complainants or their predecessors, with interest, to the vendors as required by the terms of the contract.
"12. For that there is not alleged that there was paid to the said vendors, Garth-Michie, with any definiteness of the source from which said funds came, any amounts of money which may have been paid by the complainants to Penney, Whitman Moebes, and there is nothing to show but what Penney, Whitman Moebes were heavily indebted to the original vendors, Garth-Michie, otherwise than that any payments made by Penney, Whitman Moebes to Garth-Michie were without identification as being money from the complainants, or the complainants' predecessors.
"The defendants assign all of the grounds of demurrer, separately and severally, to paragraphs 10, 11, 13 and 14."
Eyster Eyster, of Decatur, for appellants.
Bradshaw was chargeable with notice of all that appeared on the face of the two contracts and mortgage, the rights of vendees, and the terms upon which the property bought by him might be sold. He was chargeable with notice of whatever he would have learned by inquiry. As subpurchaser, he was bound to ascertain whether original vendees had been paid at the time he discharged his mortgage indebtedness to said vendees. Michie v. Nebrig, 223 Ala. 175, 134 So. 665; Branscomb v. Fed. Land Bank, 215 Ala. 243, 110 So. 42; Fed. Land Bank v. Corinth B. T. Co., 214 Ala. 146, 107 So. 88; Sherrill v. Merchants' Bank, 195 Ala. 175, 70 So. 723; Sims v. Best, 140 Ark. 384, 215 S.W. 519. He purchased lots knowing they were subject to the entire mortgage debt of the vendees to the vendors and himself, and he cannot complain. Holman v. Bank of Norfolk, 12 Ala. 369; McCoy v. Wynn, 215 Ala. 174, 110 So. 129. Settlement of individual matters between the mortgagee's agent and mortgagor does not amount to a payment on the mortgage debt. Gilchrist v. Johnson, 200 Ala. 200, 75 So. 958. Where agent is acting for himself, adversely to his principal, notice to the agent is not notice to the principal. Commonwealth L. I. Co. v. Wilkinson, 23 Ala. App. 561, 129 So. 300; Lawrence v. Tenn. Valley Bank, 224 Ala. 692, 141 So. 664, 665. An agent exceeding his limited authority known to the party dealing with him does not bind his principal. Wynn v. Hoffman, 203 Ala. 74, 82 So. 32. The alleged parol consent of original vendors to sale by original vendees on terms, which were not complied with, did not bind the vendors to release lands nor estop them from laying claim thereto. McCoy v. Wynn, 215 Ala. 174, 110 So. 129. Foreclosure of a mortgage is presumed to be regular and valid. Williams v. Oates, 212 Ala. 396, 102 So. 712. Where real property is granted by deed containing a condition subsequent, upon failure to perform which the estate of the grantee is to terminate, a breach of the condition by the grantee or his transferee gives the grantor a right of action for the recovery of the property; the appropriate remedy being universally conceded to be ejectment. 9 R. C. L. 862.
Tennis Tidwell, of Decatur, for appellees.
The vendors, with knowledge of the dealing between decedent and original vendees, waived the provision in their mortgage that decedent's mortgage should be transferred to them. Clemmons v. Metcalf, 171 Ala. 101, 54 So. 208; State L. I. Co. v. Finney, 216 Ala. 562, 114 So. 132; United States Fidelity Guaranty Co. v. Miller, 237 Ky. 43, 34 S.W.2d 938, 76 A.L.R. 12; 27 R. C. L. 910; 40 Cyc. 254; Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51; Bishop on Contr. (2d Enl. Ed.) § 792; Charlotte Harbor N. R. Co. v. Burwell, 56 Fla. 217, 48 So. 213; Farmers' Merchants' Mut. Life Ass'n v. Mason, 65 Ind. App. 66, 116 N.E. 852, Shedd v. Amer., etc., Co., 48 Ind. App. 23, 95 N.E. 316; Ohio, etc., Co. v. Anderson Co., 168 Ind. 593, 81 N.E. 574, 11 Ann. Cas. 1045. The rights of Bradshaw were fixed under the contract of August 2, 1920, and were not affected by the mortgage subsequently executed. 41 C. J. 74. Paragraph 16 of the bill shows facts which constitute both a waiver and an equitable estoppel. Scharfenburg v. New Decatur, 155 Ala. 651, 47 So. 95; Early v. Williams, 135 Tenn. 249, 186 S.W. 102, L.R.A. 1916F, 418; Fields v. Killion, 129 Ala. 373, 29 So. 797; Gable v. Kinney, 219 Ala. 150, 121 So. 511; Tobias v. Morris, 126 Ala. 535, 28 So. 517; Stevens v. Turlington, 186 N.C. 191, 119 S.E. 210, 32 A.L.R. 871. A written contract, whether under seal or not, may be discharged or modified by a subsequent parol agreement. Carpenter v. Murphree, 49 Ala. 84; Robinson v. Bullock, 66 Ala. 548; Wallis v. Long, 16 Ala. 738; First Nat. Bank v. Gallagher, 119 Minn. 463, 138 N.W. 681, Ann. Cas. 1914B, 120; Moses v. Lomis, 156 Ill. 392, 40 N.E. 952, 47 Am. St. Rep. 194; Sanitary, etc., Co. v. Chicago Title Trust Co., 278 Ill. 529, 116 N.E. 161. The bill contains equity, and entitles the complainants to relief. Smith v. Roney, 182 Ala. 540, 62 So. 753; Rea v. Longstreet, 54 Ala. 291; Torrent Fire Engine Co. v. Mobile, 101 Ala. 559, 14 So. 557; Boone v. Byrd, 201 Ala. 562, 78 So. 958; Watson v. Hamilton, 211 Ala. 688, 101 So. 609.
This cause involves important questions arising out of a conveyance of real estate, wherein vendor and vendee contemplate the subdivision and resale of the property to third persons, the proceeds of resale becoming a resource for payment of the purchase money due the original vendor, and stipulating the terms and conditions on which such subpurchasers shall have their parcels released from the purchase-money mortgage.
In Michie v. Nebrig, 223 Ala. 175, 134 So. 665, a suit in ejectment against another subpurchaser from the vendees under the same contractual arrangements here involved, it was held that subpurchasers took with notice of the stipulations of the executory contract between vendors and vendees fixing the terms upon which subpurchasers should have a release of the property from the original purchase-money mortgage. The principle of that case, notice to a vendee of all matters appearing in the chain of title of his vendor, whether recorded or not, is recognized, and not questioned on the present appeal.
We are here concerned with the rights and equities of the parties arising out of such stipulations and the course of events thereafter.
A first inquiry is, What stipulations govern the rights of these complainants under the averments of the bill?
Three contracts between the vendors and vendees, each in somewhat different terms touching the equities of subvendees, are set forth in the bill. One is embodied in the executory contract of July 17, 1920, set out in paragraph 7; another, the executory contract of August 2, 1920, set out in paragraph 8, and another in the mortgage given January 1, 1921, as set forth in paragraph 10. All these purport to deal with subpurchasers from the vendees during the period covering complainants' purchase, July 20, 1920.
When vendor and vendee have entered into a contract stipulating the terms and conditions upon which a subvendee may obtain a release of his lands, the equity of such subpurchaser is governed by the stipulations in force at the time of his purchase.
Vendor and vendee having extended an open offer to purchase on defined terms, when such purchaser becomes bound by contract, all parties are bound.
The stipulations for release become part of the contract.
In the absence of consent of the purchaser, the original vendor and vendee cannot thereafter modify their contract so as to impose a greater burden on the subpurchaser. Although the executory contract stipulates that a mortgage is to be executed by the original vendees to their vendors, this does not empower them to insert terms in the mortgage at variance with his contract to his detriment. 41 C. J. page 714.
Under this rule, complainants, in the first instance, would take under the terms of the contract of July 17th.
However, the contract of August 2, 1920, purports to be for the benefit of all parties, including purchasers prior to that date.
This brings into play the other well-known rule that a contract made for the benefit of a third person may, at his election, be accepted and enforced by him. If he claims the benefits, he also assumes the burdens.
Under paragraph 14 of the bill complainants claim under the contract of August 2d. If, as there averred, the vendees paid over to the vendors all the sums paid by decedent to the vendees, or a portion thereof equal to $50 per acre, with interest, complainants' lands are due to be released, and equity will enforce such release. Nothing in the contract of August 2d requires that the subpurchaser shall bring home to the vendor-mortgagee knowledge of the source of the fund when it was paid over. The parties were dealing with transactions already made, wherein notes had been given to the vendees, and such notes were then in their possession. Other averments in the bill are to the effect that the cash payment of 10 per cent. was paid over to the vendors on the purchase-money mortgage. When such moneys come to the hands of the vendors, the right to a release was complete.
The bill, in the aspect just considered, contains equity, and is not subject to the demurrer.
Neither is the bill as a whole, or any aspect thereof, wanting in equity because the matters averred in one aspect would be available in defense of the ejectment suit.
In construing our removal statute (Code 1923, § 6490), we have declared the rule that where the defendant desires to interpose more than one defense, some available at law and others only in equity, he is entitled to a transfer of the cause to the equity docket where all such defenses may be adjudicated, and full relief granted. Boone v. Byrd, 201 Ala. 562, 78 So. 958; Watson v. Hamilton, 211 Ala. 688, 101 So. 609.
What we have said touching consent and acceptance of stipulations made between vendor and vendee after decedent's purchase modifying the terms of release, applies to the stipulations written into the mortgage to vendors executed January 1, 1921.
Paragraph 16 of the bill, construed most strongly against the pleader, implies such assent, and avers actual participation by the vendors in the transaction between the vendees and decedent at the time the latter received his deed and executed his mortgage and notes payable to the vendees; alleges the vendors authorized the payment of the installment then due to the vendees; and authorized the decedent to pay the notes to the vendees at maturity.
The vendors could certainly authorize the vendees, to whom these notes were payable, and in which both vendors and vendees had an interest, to make collection and surrender the notes and mortgages to decedent. Caton v. Andalusia Nat. Bank, 216 Ala. 415, 114 So. 75, Thompson v. Ware, 200 Ala. 624, 76 So. 982.
We do not approve any construction of the contract to the effect that the vendees had authority to collect these notes because they were made payable to them, and, after such payment, the subvendee was still not entitled to a release, unless and until the money reached the vendors. The contract contemplated an assignment of these notes to the vendors, so that the makers could make payment to them and take up their canceled notes. The contract for assignment was between vendors and vendees. Subvendees could not control their course of business in this regard.
If these notes, whether actually assigned or not, were by consent of the vendors left with the vendees to be collected by them at maturity, payment to the vendees was authorized.
Payment of a debt to one authorized to receive payment, in equity, releases the security for such debt.
Paragraph 16 of the bill presents another aspect, which, if proven, entitles complainants to relief.
We are further of opinion that paragraphs 12 and 13, in connection with other averments of the bill, disclose such a holding out of authority in the vendees to receive collection as to constitute a waiver or estoppel against the vendors.
The makers of such notes were charged with notice that the vendors were the equitable assignees of the notes, and the mere fact that they were found still in the hands of the vendees, named as payees, would not authorize payment to them.
But if, as averred, the vendors knew of the purchases, knew of these notes, knew the vendees were collecting and surrendering the notes, and making remittance of the proceeds to the vendors from time to time, as a regular course of business, and permitted this to continue until full payment was made to the vendees, the makers of the notes were, in equity, warranted in believing the vendors were consenting to such course of business, unless otherwise advised. Gable v. Kinney, 219 Ala. 150, 121 So. 511; Tobias v. Josiah Morris Co., 126 Ala. 535, 28 So. 517; Fields v. Killion, 129 Ala. 373, 29 So. 797; Scharfenburg v. Town of New Decatur, 155 Ala. 651, 47 So. 95.
Demurrers assigned to the bill as a whole are properly overruled, where one or more aspects of the bill present good ground for relief. Abrams v. Abrams, 225 Ala. 622, 144 So. 828; Cortner v. Anderson, Clayton Co., 225 Ala. 575, 144 So. 443; Schwab v. Carter, 226 Ala. 173, 145 So. 450; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417.
Demurrer specially assigned to a "paragraph" of a bill is inapt, unless such paragraph sets forth some aspect of the bill on which relief is prayed.
Thus, demurrers assigned severally to paragraphs 8, 9, 10, 11, and 13 of the present bill, which merely set forth various features of the transaction upon which, in connection with other averments, relief is sought, are inapt, and were properly overruled.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.