102 Ala. 532 | Ala. | 1893
A tract of land of some 228 acres was sold under order of the probate court of Madison county, and was bid off in the name of Joshua H. Beadle, at the price of $800. In December, 1874, the purchase money being reported paid, the court ordered title to be made, and it was made accordingly. Of the $800 purchase money, Beadle paid $400, Seat paid $179, and one James Johnson paid the balance, $221. These are the averments of the bill filed in this case. The bill is by Seat, filed against Beadle and the heirs at law of Johnson. Its purpose is to establish a resulting trust in the land, to the extent Seat’s money entered into the purchase. The bill and amended bill charge, in substance, that the lands were let to rent, and that during Johnson’s lifetime the rent money was divided among the three purchasers, Beadle, Johnson and Seat, in the proportion of their several payments of purchase money; that Johnson died June 27,1882, and that since that time Beadle has received all the rent money, but has refused and failed to pay any part thereof to Seat, or to Johnson’s estate. In the original bill is this averment: “The said Joshua H. Beadle has continuously since (the death of Johnson) so recognized the rights of your orator and the estate of the said James Johnson, until within the last few months. The said Joshua H. Beadle now disclaims any right or title that your orator has in and to said land, alleging that he is liable as your orator’s surety on an administrator’s bond, in a sum equal to your orator’s interest in said land.” In an amendment to the bill the following language is employed : “ Since the death of said James Johnson said Beadle has taken charge of said land, and collected the rents thereof. He has paid to your orator nothing, but has constantly recognized your'orator’s rights in the premises, until within the last twelve or eighteen months, by promises of payment and settlement. Said Beadle never disclaimed your orator’s rights to said rents until twelve or eighteen months
The original bill in this case was filed August 30,1892, ten years and about two months after June 27,1882, when it' is alleged Mr. Johnson died. It should be stated that the bill charges that Mr. Johnson, throughout his lifetime, collected the rents, and distributed them between Beadle, Seat and himself, in the proportion that they had severally contributed to the payment of the purchase money.
There is nothing in the record to show to what uses the lands in controversy were applied, or were susceptible of application. If they were agricultural lands, we feel safe in. affirming, from common knowledge, that
We will next consider the 7th ground of demurrer. That ground erroneously assumes it was the duty of the complainant to aver that the contract or agreement he seeks to claim the benefit of was in writing, signed, &c. Contracts falling within the statute of frauds are not. necessarily void. They are, generally, voidable only.. If this defense be sought to be availed of, it must be pleaded, unless the bill of complaint shows on its face that the agreement is oral. In the absence of sucli showing, demurrer will not raise the question. — 2 Brick. Dig. 30, § 221; Qaffordv. Stearns, 51 Ala. 434; 8 Amer. & Eng. Encyc. of Law, 745. It is proper to add that to the case made by the bill, in no event, is the statute of frauds applicable. The equity asserted is a trust resulting by operation of law, because of the payment by the complainant of a definite part of the purchase money of the land, the conveyance being taken in the name of the defendant. — 1 Perry on Trusts, § 132. The statute of frauds extends to and embraces only trusts created or declared by the parties, and does not affect trusts arising by operation of law. — 1 Perry on Trusts, § 137.
The remaining grounds — 4th, 5th, 8th, and 9th — we Will consider together. The bill charges -expressly that until twelve or eighteen months before it was filed, Beadle never disclaimed complainant’s right to share in the rents; and ‘ ‘ then only upon the statement that he [Beadle] was liable as surety” for complainant on an administration bond. It charges also that he, Beadle, has constantly i’ecognized complainant’s rights in the premises, and directed him to find a purchaser for the land, and offered to sell and convey, and divide the proceeds between the three — Beadle, Seat and the heirs of Johnson. If these
The decretal order of the chancellor must be affirmed.
The foregoing opinion was prepared by the late Chief Justice, and is adopted as the opinion of the court.