Finnell v. Finnell

BEATTY, C. J.

On the eighteenth day of October, 1890, Williamson Finnell, the plaintiff in this action, sold and conveyed to his father, John Finnell, 4,250 acres of land. The whole purchase price of the land was $127,500.00, of which sum $35,500.00 were paid at the date of the conveyance. For the balance of ninety-two thousand dollars the plaintiff accepted his father’s promissory note, payable on or before October 15, 1900, without other security than his vendor’s lien on the land. On the twenty-fourth day of May, 1900, John Finnell organized the defendant, the Finnell Land Company, a corporation with a nominal capital of six hundred and fifty thousand dollars, divided into 6,500 shares, and on the 28th of the same month proposed in writing to convey to said corporation, free of all encumbrances, said 4,250 acres of land purchased from the plaintiff, together with a large body of other lands, in consideration of the issuance of fully paid shares of its stock as follows:—

To John Finnell, Jr................ 10 Shares.

To James Finnell.................. 10 Shares.

To Simpson Finnell................ 10 Shares.

To Bush Finnell................... 10 Shares.

To Geo. E. Goodman............... 2,000 Shares.

To John Finnell................... 4,460 Shares.

This offer was accepted by the corporation and John Finnell executed and delivered to the corporation his grant, bargain, and sale deed of said lands. All the members of the corporation knew at the time of this transaction that the purchase-money note for ninety-two thousand dollars for said 4,250 acres of land and some accrued interest, was unpaid, but they seem not to have been advised that in law it was secured by a vendor’s lien upon the land.

This action was commenced by Williamson Finnell October 14, 1900, against his father, to recover the principal and interest of his note for ninety-two thousand dollars, and against the land company to foreclose his vendor’s lien. His father

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defaulted—allowing judgment to go against him for the amount of the note and accrued interest. The land company answered contesting the indebtedness and claim of lien, and by cross-bill prayed that in the event judgment should he recovered against John Finnell and the land found subject to the asserted lien and sold to satisfy the judgment, it might be subrogated as a judgment creditor of John Finnell. John Finnell died after the cross-complaint was filed, and his son and administrator, John Finnell, Jr., was substituted in his place. Supplemental and amended pleadings were filed, but these made no material change in the attitude and claims of the parties.