Lay v. Hohenberg

The decree of the chancery court as corrected is affirmed.

Corrected and affirmed.

MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

On Application for Modification.While we have accepted the evidence of Capt. Lay as to the value of the grant, we think that he meant that it should have been estimated at $100,000 in case of the consummation of the Horne sale, or in the present sale, and that it should have been paid for in kind, that is, in proportion to what the cash, bonds, and common stock bore to each other, and not that the whole sum should be paid in money, regardless of the sum to be paid in cash for all of the property. There is no proof in the record as to the value of the bonds or the stock, but, whether above or below par, it is but equitable to all parties that the grant be paid for in cash, bonds, and stock in proportion *Page 487 to the amount they bear to each other as the consideration of the sale. We also overlooked the fact that the interest of Capt. Lay, 28 1/3 per cent., in the Wetumpka holdings, was not turned over to the receiver. It is therefore ordered, adjudged, and decreed that the receiver shall, after deducting the respondents' part of the cost therefrom, turn over to the respondents, former owners of lock 12, money, $2,171.72, bonds, $2,171.72, and stock, $13,573.23, as per face value, less respondents' part of the cost. After this deduction is made from the fund in the hands of the receiver, the same shall be turned over to the complainants according to their respective interests in same, less the complainants' part of the cost.

ANDERSON, C. J., and MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.

On Application for Modification by the Appellant.We are not inclined to recede from the last holding that the compensation for the grant should be in money, bonds, and stock in the proportion designated, but, as it has been brought to our attention that the denomination of the bonds is such that the receiver cannot literally comply with the decree, we will remand this cause in order that the spirit and purpose of the decree may be complied with by the lower court. In other words, if the bonds are of the denomination of $1,000 each, the receiver can turn over to these respondents two of said bonds, and if the parties cannot agree upon the settlement of their interest in the third bond, the register will sell same and divide the proceeds, giving the respondents such interest in same as $171.72 bears to $1,000, and a similar rule may be pursued as to any fractional interest that the respondents may have in the common stock held by the receiver.

Corrected and affirmed, but remanded for such supplemental orders as may be necessary to carry out the decree of this court.