| Ala. | Jun 29, 1912
Lead Opinion
The bill in this case was filed by tbe appellant, alleging the execution of tbe paper (set out in the statement of tbe case by tbe reporter) wbicb tbe bill denominates an “obligation to convey.” Tbe bill alleges tbe consummation of tbe marriage in accordance with tbe terms of said instrument; that she and respondent lived together for about 10 years; that on December 6, 1906, “respondent exchanged lands with one T. J. Davis, or sold tbe lands” of wbicb be was in possession and held tbe title at tbe time of their marriage, to said T. J. Davis, and with tbe proceeds thereof bought tbe S. W. of tbe N. E. %, tbe E. % of tbe S. E. 14, and 20 acres of tbe N. E. % of tbe N. W. %, of section 24, township 22, range 25, in Chambers county, Ala., and that “oratrix joined with respondent in tbe execution of said conveyance, conveying tbe land first above described to said T. J. Davis,” and that tbe land just described was conveyed by said Davis to respondent and oratrix; that respondent is now in possession of said land and of tbe personal property mentioned in tbe antenuptial paper, be and complainant having separated.
Tbe complainant in said bill offers to allow tbe respondent a support and maintenance from tbe proceeds of said property as long as be shall live, and is willing for tbe court to fix such an amount as will be proper for said maintenance.
The prayers of the bill are that respondent be required to deliver possession of said property to tbe complainant, and for general relief.
Tbe chancellor sustained tbe demurrer to tbe bill, stating in bis decree that tbe contract is “so indefinite
Under the liberal provisions of our statute (Code of 1907, § 3356), the antenuptial instrument is a conveyance of all of the property owned by the respondent to the complainant. — 21 Cyc. 1245, 1259; Pierson v. Armstrong, 1 Iowa, 282" court="Iowa" date_filed="1855-06-15" href="https://app.midpage.ai/document/pierson-v-armstrong-7090969?utm_source=webapp" opinion_id="7090969">1 Iowa, 282, 63 Am. Dec. 441, 447, 448; Ward, et al. v. Ward, et al., 108 Ala 278, 380, 19 South. 354; Jackson v. Root, 18 Johns. (N. Y. 60-78; Evenson v. Webster, 3 S. D. 382, 53 N.W. 747" court="S.D." date_filed="1892-12-08" href="https://app.midpage.ai/document/evenson-v-webster-6683330?utm_source=webapp" opinion_id="6683330">53 N. W. 747, 44 Am. St. Rep. 802, 805-807; Harlowe v. Hudgins, 84 Tex. 107" court="Tex." date_filed="1892-03-22" href="https://app.midpage.ai/document/harlowe-v-hudgins-3934892?utm_source=webapp" opinion_id="3934892">84 Tex. 107, 19 S. W. 364, 31 Am. St. Rep. 22, and note.
If there is any uncertainty as to the meaning of the reservation of a “living interest,” it would affect only the reservation, and not the validity of the conveyance. We think, however, that the expression means a right to his support. — Loyd v. Oates, 143 Ala. 231" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/loyd-v-oates-7361492?utm_source=webapp" opinion_id="7361492">143 Ala. 231, 233, 234, 38 South. 1022, 111 Am. St. Rep. 39; Bromberg v. Smee, 130 Ala. 601" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/bromberg-v-smee-6519133?utm_source=webapp" opinion_id="6519133">130 Ala. 601, 604, 30 South. 483; Frank, et al. v. Myers, et al., 97 Ala. 437" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/frank-v-myers-6514956?utm_source=webapp" opinion_id="6514956">97 Ala. 437, 442, 11 South. 832.
There being no limit to the time of disposition, it simply refers to any disposition that may be made at any time thereafter; and it provides very distinctly that whenever said property is disposed of the proceeds shall belong to complainant. Under this interpretation of the conveyance, the title to the property vested in the complainant, subject to the charge of the living interest in favor of her said husband, so long as they remained husband and wife; and when the property was
The considertion for the property received from Davis having been the money or property of the complainant, and the title having been taken by the husband to both of them in place of the complainant alone, a trust results in favor of the wife, and she is entitled to have the legal title vested in her. — 2 Devlin on Deeds, § 1161. While the specific prayer of the bill is not for this relief, yet the general prayer is sufficient to cover it. — Mobile L. Imp. Co. v. Gass, 142 Ala. 520" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/mobile-land-improvement-co-v-gass-7361410?utm_source=webapp" opinion_id="7361410">142 Ala. 520-530, 39 South. 229; Ala. Terminal, etc., Co. v. Hall & Farley, et al., 152 Ala. 263, 279, 44 So. 592" court="Ala." date_filed="1907-07-02" href="https://app.midpage.ai/document/alabama-terminal--inprovement-co-v-hall--farley-7362980?utm_source=webapp" opinion_id="7362980">44 South. 592; Sharpe, et al. v. Miller, 157 Ala. 299, 303, 47 South. 701. The personal property belongs to the complainant, and she is entitled to the possession of the land, subject to any right that the husband has to a “living interest,” which is recognized by the bill.
For these reasons, we hold that there is equity in the bill.
The decree of the court is reversed, and a decree will be here rendered, overruling the demurrer to the bill and remanding the cause.
Beversed, rendered and remanded.
Rehearing
ON APPLICATION OF REHEARING.
The majority of the court, consisting of Anderson, McClellan, and Sayre, JJ., and the writer are of the opinion that' the demurrer to the bill was well taken, and was properly sustained by the chan
We are now of the opinion that the bill in its present shape will neither authorize the relief of specific performance specially prayed, nor warrant the declaration and enforcement of a trust, as we held on the original hearing, as is shown by the opinion of Simpson, J., who then wrote for the majority.
The hearing being on .the demurrer to the bill, the averments, of course, must be construed most strongly against the complainant. So construing the averments, we now hold that the plain meaning thereof is that the complainant ■ voluntarily consented to the sale or exchange of the lands, and consented to the deed of Davis’ being made to her and her husband jointly, in settlement of their respective rights to the land sold or exchanged. ■
If these be the true facts of the case, and the averments are susceptible of this construction, then there could be no specific performance of the contract, because it was wholly executed in accordance with the agreement and understanding of the parties,, and, of course, there would be no trust, either constructive or resulting. Moreover, the averments show that the legal title to the land sold or exchanged was in complainant, and that the husband at best had a mere equity; therefore the conveyance to Davis was a conveyance by the complainant, in which the husband joined merely for the purpose of perfecting the conveyance, as the statute directs shall be done in the case of a conveyance by a married woman. There is no intimation that these deeds did not correctly declare or recite the real agreement between the parties.
We are of the opinion, however, that there is nothing substantial in the point raised by appellee on this rehearing as to inconsistent and repugnant averments, in that the bill averred an “obligation to convey”; whereas the exhibit referred to showed an “executed conveyance.” At most, it ivas but a misnomer of the instrument referred to, and Avhich Avas made an exhibit to the bill. The instrument set out >vas unquestionably the same one referred to in the averment. To hold that this mere misnomer was a material repugnancy Avould be draAving too fine a bead in equity procedure.
It, hoAvever, folloAvs from Avhat Ave have said that the decree of the chancellor must be affirmed.
Affirmed.