165 So. 229 | Ala. | 1935
Lead Opinion
The bill was for cancellation of conveyances exhibited. Demurrers being sustained, the bill was amended, and the original grounds of demurrer refiled to the bill as amended were sustained. And the bill as amended was dismissed.
The demurrer of the Phoenix Mutual Life Insurance Company assigned as grounds, among others, that the bill as amended shows that complainant was guilty of laches, and that the rule of prescription prevented a recovery.
The conveyance from complainant, M. A. Lewis, to M. E. and L. V. Owen, of date of November 6, 1908 (before the statute, section 8046, Code, was adopted), contained the following provisions:
"Know All Men by These Presents: That I, M. A. Lewis, for and in consideration of One ($1.00) Dollar, and love and affection I have for my son-in-law and daughter to __________ in hand paid by M. E. Owen and L. V. Owen to me in hand paid One Dollar by M. E. Owen __________, the receipt whereof I do hereby acknowledge, do hereby bargain, grant, sell and enfeoff and confirm and convey unto the said M. E. Owen L. V. Owen, the following described real estate (describing the property).
"But it is understood that the said M. E. Owen and wife, L. V. Owen is (are) to take care of the said M. A. Lewis during her natural life."
That conveyance was duly recorded and carried notice of its conditions to subsequent purchasers or mortgagees, etc. Planters' Warehouse Commission Co. v. Barnes et al.,
The averments of the bill as amended are aided by the exhibits (Grimsley v. First Ave. Coal Lumber Co.,
As affecting bills of this nature, the observation is made in Hunter v. Watters,
In First Nat. Bank of New Brockton v. McIntosh,
In Woods et al. v. Wright,
It is said of that bill, that "while the bill alleges fraud in general terms, it also alleges that 'said deeds were made in consideration of an agreement between complainant and the said respondents, Nebraska Woods and Georgia V. Cochran, that they would support the grantor during the remainder of her life,' without *482 alleging that said agreement to support the grantor was entered into with the fraudulent purpose on the part of the grantees not to comply therewith, and that the same has not been kept."
It is further recited that more than thirteen years had elapsed after execution of the conveyance, and one of the parties had died; held relief properly denied for laches shown on the face of the bill and duly challenged by demurrer.
In Hannah et al. v. Culpepper,
"Technically, by virtue of the deed of gift, the possession of this land was in the holder of the legal title, first in K. E. Culpepper, and after his death in his widow and heirs. Actually, however, the possession was shared by the grantor, this complainant, and laches will not be imputed to him because of his delay in asserting his right to make a technical reentry, and to have the deed canceled by judicial decree. First Nat. Bank v. McIntosh,
"Moreover, where a grantor's delay in entering to enforce a forfeiture is not aggravated by any element of estoppel, a delay of less than the period of limitations at law will not bar his right of entry. Bredell v. Kerr,
The decree of cancellation in that case was affirmed.
In the case of First Nat. Bank of New Brockton v. McIntosh,
"As to respondent bank and those holding under the grantee, they were sufficiently put on inquiry to be chargeable with full knowledge of the fact of the existence of such condition subsequent. It has been held sufficient notice or knowledge to a party in interest if the circumstance or fact is sufficient to excite attention and put him on guard and so call for inquiry; that this is notice of everything to which the inquiry would lead. * * * The deed in question, with its condition subsequent, duly recorded, gave notice to the bank of its contents."
It was further observed:
"The bill shows the complainant to be in the possession of the property, and at all times to have been so, both before and after the execution of the deed and at the time of the filing of the bill. Nothing therein indicates that the grantee in the conveyance asserted any right, title, or interest, adverse or otherwise, in and to the property in question. It is necessary that the assertion of adverse right be shown by the bill, as well as acquiescence in such adverse right, and possession by the complainant for a time which a court of equity would regard as unreasonable and to the prejudice of the adverse party, in order to establish laches in the party so acquiescing. Treadwell v. Torbert, 122 Ala. [297], 300, 25 So. 216; Montgomery L. Co. v. Lahey,
The bill as amended shows that the complainant was in possession of and occupying the lands involved in this litigation, as a homestead, at the time of the conveyance and continuously to the time of the filing of the bill in this cause. Complainant avers she had no knowledge of respondent's (Phœnix Mutual Life Insurance Company) mortgage of record date of July 4, 1923. It is conceded, however, that she had constructive notice of the mortgage; but it is well insisted by appellant that so long as neither the respondents Owen and his wife, nor the respondent Phœnix Mutual Life Insurance *483 Company asserted or attempted to assert any adverse rights to her in her occupancy of the premises, until shortly before the filing of the bill, she was not guilty of laches.
Until such time as the condition was broken and complainant was sought to be deprived of her possession and support from the land by the grantees, she was under no duty to take action for cancellation of the deed in question. That is, until there was a breach of the condition by reason of the failure of the grantees "to take care" of her, she had no right to maintain her bill for such failure of consideration and breach of condition contained in the conveyance.
The bill as amended does not show that she is guilty of laches, barred by statute, or prevented by the rule of prescription from due prosecution of this suit.
The judgment of circuit court, in equity, is reversed and the cause is remanded.
Reversed and remanded.
BOULDIN, BROWN, and KNIGHT, JJ., concur.
Dissenting Opinion
The sole question presented and decided is whether or not the bill as amended shows on its face that the complainant was guilty of laches in seeking cancellation of the deed. If she was guilty of laches and this appears on the face of the bill, it was subject to the grounds of demurrer. There is no division of opinion here on that question. Van Ingin v. Duffin et al.,
The majority of the justices concur that if complainant remained in possession of the lands under claim of right jointly with her grantees, and did not have actual knowledge that the grantees in the deed had mortgaged the lands, and the covenant to furnish support and maintenance to complainant was not otherwise breached until the mortgage of the life insurance company was foreclosed, depriving the grantees of the ability to furnish support to complainant, her right of action did not accrue until such breach, and she was not guilty of laches. But in such circumstances she would only be entitled to have a decree protecting her equity from the operation of the mortgage. (GARDNER, BOULDIN, and FOSTER, JJ., concur in the foregoing.)
The writer and Justice GARDNER are of opinion that the amendment to the original bill does not cure the defects pointed out by the demurrer. If the averments of the fourth paragraph are true, and they must be so taken on demurrer (Elmore, Quillian Co. v. Parrish Bros.,
There can be no question but what the averments of the fourth paragraph of the original bill are inconsistent with the averments of that paragraph added by amendment, and, therefore, if the rule in respect to construing the averments of a pleading most strongly against the pleader is adhered to, the averments most favorable to the demurrant will be accepted as true, and these averments, as we have stated, show that the complainant's right of action accrued in 1908, more than twenty years before the bill was filed. See 18 C.J. page 378, § 434.
The substance of the holding in First Nat. Bank of New Brockton v. McIntosh,
Here the averments of the bill show that the grantees have been asserting adverse right, have been trafficking with the title by repeatedly mortgaging the lands for debts contracted, from the execution of the deed on up to 1923, and this, so far as the bill shows, with actual knowledge of the complainant, except as to the mortgage executed to the Phoenix Mutual Life Insurance Company to refinance the loan previously procured; and the complainant did not move until the insurance company foreclosed its mortgage and sought to deprive her grantees of the possession of the property. It further appears that the grantees are not now resisting the cancellation of such deed.
I am now of opinion that the circuit court did not err in sustaining the demurrers to the bill as amended, and the complainant failing to further amend, the bill was properly dismissed.
GARDNER, J., concurs in the foregoing.
Addendum
Application overruled.
BOULDIN, FOSTER, and KNIGHT, JJ., concur.
GARDNER and BROWN, JJ., dissent.
ANDERSON, C. J., not sitting.
