LIVINGSTON, Chief Justice.
On the 8th day of January 1954, the appellant, Amos Pierce, filed his original bill of complaint in the Circuit Court of Etowah County, Alabama, in Equity, against the appellee, Jesse W. Murphree, seeking the specific performance of a contract to sell a certain described 120 acres of land located in Etowah County, Alabama.
The bill alleged, in substance, that in January 1949, the appellant agreed to buy from the appellee, and appellee agreed to sell to appellant, 120 acres of land described in said bill of complaint, at and for the sum of $9500; that he, appellant, was placed in possession of said lands; that the appellee was to apply all amounts due by the appellee to appellant at that time as a credit on the purchase price of said lands, and that appellant would pay the balance of the purchase price to appellee by the year 1952.
The bill further alleged that appellant had paid the balance of the purchase price by April 8, 1952, and prayed that the court grant to the appellant specific performance of the alleged oral contract for the alleged purchase of said lands, or in the alternative to establish a trust in said lands or to determine that appellant had a lien on said lands, and for general relief.
Demurrers to the bill were overruled and the appellee then filed an answer to the bill of complaint as amended, in which he stated, in substance, that he had purchased the real estate involved on January 18, 1949, and the said property was subject to a purchase money mortgage given by appellee to E. A. Rogers, Jr., and Albert S. Rogers.
The appellee further alleged in said answer, which was made a cross bill, that appellant had been in possession of said lands as a tenant of the appellee, and he further denied that he was in any way indebted to the appellant but that appellant was indebted to him for rents. Appellee further alleged in said answer that on April 8, 1952, appellant and his wife had by deed of that date, recorded in Book 501, page 151, in the office of the Judge of Probate of Etowah County, Alabama, conveyed all of their right, title, interest and claim in and to the real estate involved in this suit to appellee, and that, in fact, the appellant was at the time of the execution of said deed indebted to the appellee for rent for the crop years 1949, 1950 and 1951 for said lands, said rent being on the basis of one-fourth of the cotton and one-third of all other crops grown on said property during said crop years, and that at the time said deed was made to appellee a settlement was made with appellant for said rents and other charges due by appellant to appellee. Said answer and cross bill further alleged that after the execution of the aforesaid deed, appellant paid to appellee rent for the crop year 1952, in the amount of $881.02, but that he had not paid any rents on said lands to appellee since 1952.
Appellee prayed in said answer and cross bill for the court to fix and award to him the rents due by appellant to him and to decree and establish that appellant had no right, title, interest or claim in and to the lands involved in said suit, or any part thereof.
On June 24, 1959, appellant amended his bill of complaint by adding thereto paragraphs 1(a) and 1(b), in which he alleged that he had been in continuous possession of the property and had paid for it by working for appellee, as set forth in his original bill of complaint, and further alleged that he had a running account and stated account against appellee.
The appellee also filed an amendment to his answer to said amended bill by adding
The appellant again, on February 4, 1960, filed an amendment to his bill of complaint in which he again alleged, in substance, that he had paid for the property by his work and labor, and that if he was not entitled to the specific performance, he was entitled to have the property sold under an alleged oral trust for the satisfaction of his claim. In this amendment, appellant attempted to adopt as a part of the pleading the answer that he, the appellant, had filed to certain interrogatories propounded to him by appellee, and he also attempted to adopt as a part of the pleadings certain paragraphs of an answer and cross bill filed by the attorneys of appellee in a suit wherein appellee's wife had sued appellee for divorce.
The appellee filed a motion to strike the last-mentioned amendment as a whole, which motion was overruled, and the motions of appellee to strike the two paragraphs in said amended bill wherein appellant sought to adopt his answer to interrogatories and adopt pleadings in another case were granted by the court.
Appellee's demurrers to the amended bill were overruled.
Appellee then filed an amendment to his answer and cross bill so as to answer the bill as last amended. In effect, this amendment reassigned all matters theretofore set forth in the amended answer and cross bill of appellee in answer to the bill of complaint as last amended, and denied the factual allegations of said last amendment to the bill of complaint, and denied that appellant was entitled to any of the relief prayed for therein.
By decree, dated February 17, 1960, the trial court found and decreed that appellant had no right, title, interest or claim, and no lien or encumbrance upon the property involved in the suit, and that he had no right to possession of said property and was not entitled to relief as prayed in his bill of complaint as last amended. The court further held that the reasonable rental to be paid by appellant to the appellee for the lands involved in the suit from the year 1953 to 1959, both inclusive, was $5,000, and judgment was entered therefor.
From this decree, the appeal is taken.
The evidence in this case was taken before a commissioner and is not attended with the usual presumption of correctness as if heard ore tenus by the trial court. It is therefore our duty to review the evidence and to sit in judgment as to the facts established by it. This duty we have performed with painstaking care.
In the first place, the record is voluminous and is one of the most confusing we have examined. The evidence or the testimony of the parties and their witnesses is in hopeless conflict. Some of the witnesses flatly contradicted themselves. At least one of the witnesses refused to answer several questions bearing on the issues involved.
This is what we believe happened and what we find the facts to be:
Jesse W. Murphree, the appellee, was living in Jackson County, Alabama, in the year 1933. He was married to Sarah Hughes Murphree, and they were living together as husband and wife and had been for a number of years. Sometime after 1933, he moved to Cherokee County, Alabama, but his wife refused to follow him and continued to live in Jackson County. He was completely broke and owned no property whatever. Sometime later, he inherited from his father a one-fifth interest in 340 acres of land. In about 1938, he purchased 88 acres of land in Cherokee
As best we can gather from the record, Murphree acquired title to some 800 acres of land in Cherokee County. It appears that some of the young men dropped out of the scheme or plan at different times.
From about the year 1942 to the year 1949, Amos Pierce continued to live in Cherokee County and continued to labor under the agreement. As best we can gather from the record, these young men were to pay rent on certain portions of the land worked by them, which rent was to constitute a fund to purchase other lands. At the same time, they were to perform labor for Murphree at his sawmill and on other lands owned by Murphree and were not to receive pay for the labor, but the products of their labors and rents were to be used as a fund to purchase other lands.
Under this same arrangement, Murphree purchased 598 acres of land in Etowah County in 1949 from the Rogers Brothers. By agreement of the parties, Pierce moved to Etowah County on 120 acres of the land purchased from Rogers. The land was purchased from the Rogers Brothers for a consideration of some $38,000, of which $10,000 was paid in cash, and a purchase money mortgage executed by Murphree to the Rogers Brothers for $28,000. At the time of the trial of the instant case, this mortgage had been reduced to some $14,000.
The agreement between Murphree and Pierce at the time that Pierce moved to Etowah County and started farming the 120 acres of the Rogers' place was to the effect that when Pierce had paid the sum of $9500, Murphree would deed him the 120 acres. Pierce's prior labors and accumulations of some 6 to 8 years was to be taken in consideration in the purchase of the 120 acres of the Rogers' place, and when Pierce's accumulations and labor amounted to $2000, after he moved to the Rogers' place, Murphree would deed him the 120 acres that he occupied of the Rogers' place, and that if said accumulations amounted to $2000 by the year 1952, Murphree would convey the 120 acres of the Rogers' place to Pierce.
From this confused record, we believe and find that Pierce completed and fulfilled his contract sometime during the year 1952.
In 1951, Murphree's wife sued him for divorce. At this time, some 1400 acres of land, and perhaps more, acquired under the said agreement or arrangement, stood in Murphree's name. There were several of the young men, including Pierce, who were still working for Murphree under the original agreement. Not one word of these agreements was ever put in writing, and apparently no records of anything were kept. At the time the divorce suit was pending against Murphree, he called together the young men in the courthouse in Gadsden, Alabama, with his lawyer from Scottsboro, Alabama, and they reviewed the whole situation, and the young men agreed to give Murphree a quitclaim deed to all the land to enable Murphree to make a satisfactory
There was introduced in evidence over the objection of the respondent, Murphree, on the trial of this case, a part of the pleadings in the divorce case, which is as follows:
Also, over the objection of the respondent Murphree, the following testimony of Murphree in the divorce case was introduced in this case:
The foregoing testimony was signed by Murphree on July 2, 1952, on the same day Murphree moved the court that his cross bill be dismissed. On July 8, 1952, the divorce decree was entered, and on the same day Murphree's motion to dismiss his cross bill was granted.
On the trial of the instant case, several witnesses were examined by both parties. The evidence of these witnesses, including the parties to the suit, is quite involved and confused, and no attempt will be made to summarize the testimony of each witness. The evidence is often contradictory, almost invariably confused, and even when that is not the case, exceedingly indefinite and inconclusive. In several instances, witnesses would admit in later testimony the very facts that they had earlier denied. Some of the witnesses who are said to have been parties to the agreement or arrangements flatly denied the existence of it. Murphree himself, in effect, said he never heard of it. On the other hand, some of Pierce's witnesses who were also said to be parties to the agreement or arrangements testified that there was such an agreement or arrangements.
Pierce testified that the value of his services performed over a period of about 12 years amounted to twelve or $13,000, and that he performed labor for Murphree some years as much as six months a year, and in other years for a less period of time; that he had received no pay from Murphree whatever. Murphree produced no checks showing payments of any amounts to Pierce during the whole period of time, although one witness for Murphree did testify that he kept Murphree's books and that Pierce was paid for his labor.
In testifying as to the arrangements or agreement between Murphree and the young men who he gathered around him, Mr. Jenings, a witness for Pierce, testified, in part, as follows:
The principles of law applicable to the facts in the instant case cannot be better stated than is found in the language
As indicated above, and we find, that the appellee Murphree did make an agreement with appellant Pierce, and with others; that the appellant did perform services under the agreement from sometime in the year 1942 until January 1949, at which time the Rogers' place in Etowah County was purchased, and at which time Pierce moved to Etowah County on the 120 acres now claimed by him; that Pierce went into possession of the 120 acres of the Rogers' place with the understanding with Murphree that he was to be given a deed to the 120 acres when his services to Murphree and the rents paid to Murphree would amount to the sum of $2000. Certainly, Pierce would not have moved to Etowah County under a new agreement to the effect that they would pay for the Etowah County land under the new agreement, and that Pierce would lose the value of his services and payments for rent made to Murphree prior to that time.
At the time the quitclaim deed was given by Pierce and others to Murphree, the record title stood in Murphree's name, and according to Murphree's own testimony:
We think the giving of the quitclaim deed was nothing more nor less than a part of the same general plan, or scheme, for the appellant, Pierce, to acquire a home and a parcel of land, and for the purpose of Murphree's making a settlement with his wife in her action for divorce, though the reasons for this maneuver are not at all clear.
We are clear to the conclusion that when Pierce moved on the Etowah County land he had already paid a part of the purchase price, and in our opinion, he paid the balance of the purchase price after he took possession of the 120 acres. He has, therefore, paid the purchase price in full, and he was put in possession by Murphree in accordance with the terms of the agreement and is entitled to specific performance of the contract made by Murphree to convey it to him. This occurred sometime in the fall of 1952, and at which time he was under no more obligations to pay rent to Murphree.
It is true that the whole of the Rogers' place is under the mortgage to the Rogers Brothers, but we are of the opinion, and hold, that it is Murphree's obligation to pay it.
The cause is reversed and remanded to the lower court with instructions to enter a decree in conformity with the above.
Reversed and remanded with directions.
GOODWYN, COLEMAN and HARWOOD, JJ., concur.