Alfred Fanning entered into a written contract with E. L. Martin for the purchase of a vacant lot in the city of Anniston. Payments of the purchase money were completed in 1905 — such payments being made by Alfred, according to the preponderance of the evidence — after which a deed was executed conveying the lot to Ada Fanning, wife of Alfred. This was done during one of Alfred's numerous temporary absences from home, on the suggestion of the wife, and without the knowledge or consent of Alfred. However, very soon thereafter — within two or three months — Alfred was advised of what had been done; but he raised no objection and allowed the title to remain in its status quo until he filed this bill in April, 1921. Meantime the Fannings continued to live together as man and wife on the property, which was improved after purchase, until a short time before this bill was filed, when Ada moved away to Ohio, leaving Alfred, with their young children, in possession. Then Alfred filed this bill, praying that the deed to Ada be canceled and the title vested in him; in other words, that a trust for his benefit be declared and enforced in the property. On final hearing on pleadings and proof, complainant's bill was dismissed.
On the facts we hold that the transaction in question operated to vest title in defendant as trustee sub modo for complainant; that is, that the parties had no intention to separate the legal title from the beneficial use, but defendant obtained the title by an unconscientious act, in violation of complainant's rights and wishes, and so by a fraud in law, substantially as averred in that alternative of the bill added by amendment, thus acquiring title to the property as constructive trustee for complainant. Butts v. Cooper, 152 Ala. 375,44 So. 616.
Staleness or laches is founded upon acquiescence in the assertion of adverse rights and undue delay on complainant's part in not asserting his own, to the prejudice of the adversary party. Treadwell v. Torbert, 122 Ala. 300, 25 So. 216, and the cases cited to Zeigler v. Zeigler, 180 Ala. 251,60 So. 810. The lapse of time is, of course, an important element; but there are others to be considered. In the present case two considerations conspire to excuse complainant for his delay in filing this bill: (1) The marital relation between the parties, so long as cohabitation continued, may well have excused complainant from proceeding against his wife (Haney v. Legg, 129 Ala. 619, 30 So. 34, 87 Am. St. Rep. 81; Zeigler v. Zeigler, supra; 4 Pom. Eq. Jur. [4th Ed.] § 1452); (2) complainant was in possession, along with his wife, and could afford to wait until his claim of ownership was attacked, as, for example, by a suit to quiet title. Fowler v. Alabama Iron
Steel Co., 164 Ala. 414, 51 So. 393; Woodlawn Realty
Development Co. v. Hawkins, 186 Ala. 234, 65 So. 183; 4 Pom. Eq. Jur. (4th Ed.) § 1454. In Ogletree v. Rainer, 152 Ala. 467,44 So. 565, this principle was applied in favor of a party in possession under an equitable title. The notes under the section cited from Pomeroy's Equity Jurisprudence, supra, instance a number of cases in which much longer delay than here shown was excused. Nothing to the contrary appears from the record, save only defendant's contention that, pending the title in its present condition, she contributed from her earnings as a washerwoman to the payment of the indebtedness incurred in the improvement of the property after purchase. Such contributions, if made, were with the knowledge and acquiescence of complainant, of course, and that complainant stood by, allowing defendant so to invest her hard-earned wages in the improvement of the property, would afford a very persuasive reason for holding that he should not now be permitted to question the status of the title on which, presumptively, such investment was made. Gibson v. Herriott,55 Ark. 85, 17 S.W. 589, 29 Am. St. Rep. 17, and authorities cited on page 22.
But, in view of the finding that complainant had furnished the money for the purchase of the lot — this, because defendant appears to have had little earning power (in this latitude) and because the witness Martin, with whom the purchase of the lot was negotiated and to whom payments were made, so testified — the burden of proving this matter of prejudice to complainant, this matter of estoppel, for that is what it comes to — rests upon defendant. Anderson v. Northrop,30 Fla. 612, 12 So. 318. Of payments for the improvement Martin seemed to know nothing, so that the opposing contentions as to that rest upon the contradictory testimony of complainant and defendant. Upon considerations already sufficiently indicated, we feel constrained to accept complainant's version of the facts as to payment for the improvement, viz. that he paid for the improvement
as well as for the original purchase. It results that complainant is entitled to a decree vesting the property in him, and, to the end that such decree be made, the decree rendered in the trial court must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.