108 So. 864 | Ala. | 1926
The suit was at law, filed December 31, 1921, process executed August 21, 1922, and duly removed to the chancery docket. The recited pleading was conformable to the order of removal. Stover v. Hill,
The appeal is from a decree sustaining demurrers to the bill as amended. It had for its purpose the declaring null and void an order of sale of lands and all the proceedings relating thereto, and for cancellation of certain deeds by alleged purchasers at said sale, etc. The special judge was appointed under section 3381 of the Code of 1896, providing for a special judge where the presiding judge is "incompetent for any legal cause" to act in the premises.
It needs no citation of authorities to the proposition that one may not sit in judgment in a matter in which he is interested. This rests upon the fact that the final arbiter must be beyond the imputation, in law, of bias or prejudice or the influence of the relations in life recognized by our statutes of disqualification — statutory and common-law. Woodmen v. Alford,
From such fundamentals come the long prevailing rule that a judge, fiduciary, trustee, or agent is not permitted to become the immediate purchaser of land of which officer or person has direction, dominion, or control in representative capacity or stands in confidential relation to the owner. In Saltmarsh v. Beene, 4 Port. 283, 292, 293, 30 Am. Dec. 525, it is said of the English rule:
"In Ex parte James, 8 Ves. Jr. 345, it was decided that the purchase was not permitted in any case, however honest the circumstances; the general interests of justice requiring it to be destroyed in every instance — no court being equal to the investigation and ascertainment of the truth in much the greater number of cases. Lord Rosslyn was of an opinion, that to authorize the sale to be set aside, it should be shown that the agent or trustee had gained an advantage by the purchase. Whichcote v. Lawrence, 3 Ves. Jr. 750. But the correctness of Lord Rosslyn's opinion is denied by Lord Eldon, in the cases of Ex parte James and Ex parte Bennett [10 Ves. Jr. 381] already cited. And the true rule now recognized in the courts of chancery, both in England and in this country, is that laid down in Lord Alvanley, in Campbell v. Walker [5 Ves. Jr. 680], that a trustee purchasing the trust property, is liable to have the purchase set aside, if in any reasonable time thereafter the cestui que trust makes known his dissatisfaction."
This was approved in Calloway v. Gilmer,
In Cottingham v. Moore,
"No principle of equity is more firmly ingrafted on the jurisprudence of this country than that a purchase by a trustee for his own benefit at a sale of the trust property, is voidable at the option of the cestui que trust, and will be set aside on timely application made for that purpose. And in the application of this rule it is unimportant whether the purchase be made directly or indirectly, in person, or through an intermediary who subsequently reconveys to the trustee, and without regard to the question of fairness in the purchase. This doctrine is too familiar to call for citation of authorities. Such sales, however, are not per se void, but only voidable at the option of the beneficiary or cestui que trust, when seasonably expressed, though in some adjudged cases there may be found loose expressions to the effect that the purchases of trustees are void, or that a trustee cannot purchase at his own sale."
After some review of the earlier cases, this rule was again declared in Schloss Kahn v. Brightman,
"In Bank of Wetumpka v. Walkley,
"The case of Penny v. Jackson,
This was adhered to in later decisions. Tolly v. Hamilton,
The many authorities in this and other jurisdictions are collected in note to L.R.A. 1918B, 7, to the text, that the rule is almost unanimous, both in the United States and in the British Empire, that an administrator or executor may not purchase at his own sale of the property belonging to the estate he represents. Frazer v. Lee,
The exceptions to the general rule under consideration are indicated in Peters Mineral Land Co. v. Hooper,
"* * * After one has performed his office as agent, or has in good faith severed his relation as agent, he is free to negotiate for his own interest and can act 'adversely to his former principal as fully as any other person.' McKinley v. Irvine,
And in the earlier decisions it was held that executors or administrators having an interest in the estate might purchase the same at their own sale, provided there was no unfairness in the sale. Brannan v. Oliver, 2 Stew. 49, 19 Am. Dec. 39; Saltmarsh v. Beene, 4 Port. 283, 30 Am. Dec. 525; McLane v. Spence,
The several assignments of error present for review the action of the trial court in sustaining demurrer of the several defendants to the bill, among other grounds, on the theory that the facts averred show the bar of the statute of limitations, the operation of the rule of repose, and that of laches; that the same, being apparent upon the face of the bill, is available to respondents by demurrer as well as by plea or answer. Harper v. Raisin,
It is a familiar principle that, aside from statutes of limitation, courts of equity will discourage laches and delay in the enforcement of rights (Kidd v. Borum,
The sale not being void, but voidable, must be challenged by a proper and timely application. The suit in ejectment against respondents G. C., S.W., and L. C. Miller, A. G. Lusk, J. T. Ash, W. F. and T. R. Jones, and W. O. Rankins, was filed December 31, 1921, and process executed August 21, 1922. There was due transfer of the cause to the equity docket by order of the court on February 28, 1923. Thereafter the pleadings were made to conform to equity procedure by the bill filed in said transferred cause on March 29, 1923, and respectively amended on February 27th, April 7th, and August 5th of the year 1924. The parties respondent, appellees here, were embraced in the bill filed March 29, 1923, and the dates of execution of process of the added respondents are not given. The new respondents, Col. Matthews and R. A. Simmons, appeared and demurred to the bill on July 9, 1923; the other respondents demurred on February 27, 1924; and, after all amendments were made to the bill, all respondents again demurred to the bill as amended on August 8, 1924. The demurrers being sustained, the appeal is taken, and there is assignment of error as to the several decrees on demurrer.
The bill as amended avers the claim of title to complainant from a non compos mentis and that she died on December 26, 1921; that the proceedings in the probate court challenged were instituted by petitioner on August 1, or September or October 1, 1901, as the case was, the sale of date November 22 and report on December 9, the appointment of the special probate judge and order by the same, and the purported confirmation of said sale on July 12, 1905. The appointment of the special judge was of date December 9, 1901. The attempt to bring in as parties by the bill (filed March 29, 1923) James Gladwell, Col. Matthews, H. A. Simmons, and J. H. Burroughs (who were not parties in the ejectment), was more than a year after the death of the predecessor in title, Anne Henderson, who died on December 26, 1921, and more than 20 years after the sale made and reported December 1, 1901. Deferred payments of the purchase-money notes by G. B. Foreman, due and payable November 22, 1901, and November 2, 1903, with interest from November 22, 1901, and that of Jas. T. Green, November, 1902 and 1903, with interest from date, merely postponed the date of report of final payment and order to make deed, which is averred to have been entered by said special judge on or about July 12, 1905.
Upon timely application, where one is injured by fraud of another, when the facts are concealed or do not come to the knowledge of the injured person until some time afterwards, the statute of limitations, in a court of equity, will be held to run from the discovery of the fraud, or until, by reasonable diligence, the fraud would have been discovered, after which he must have one year within which to prosecute his suit. Duncan v. Watson,
Whether the suit may be tested under the statute or the rule of repose, the decree of the circuit court, in equity, is free from error as to the new respondents mentioned and who challenged by demurrer the sufficiency of the bill as amended.
As to all of the respondents, the action of the court is sustained on the ground that there is a misjoinder of parties in this cause, it being shown that the land is held by separate and independent respondents holding in different right; that is to say, the holders by mesne conveyances from G. B. Foreman of the said lands in Sec. 36, Tp. 14, R. 2 E., and that from Jas. T. Green and W. S. Foreman in Secs. 2, 11, Tp. 15, R. 2 E., are subject to different rules of equity, and should not be confused in one suit. There is no fraudulent scheme or confederacy charged against G. B. Foreman with Jas. T. Green and W. S. Foreman, or with the Woodalls, to purchase the respective tracts of land contrary to law. There is no disqualification of the judge averred as to the sale to G. B. Foreman. It is averred that respondents H. T. Jones and H. A. Simmons (defendant only in suit in equity) are the owners of the said lands in section 36 acquired from G. B. Foreman, and that the other defendants (embracing one or more of the new defendants in equity) purchased the land from W. S. Foreman and Jas. T. Green. The status of 10 and 20 years is invoked by demurrer of each of these parties.
Under the averments of the bill, the equities of the parties are different, as we have indicated. The sale to G. B. Foreman is *688
merely that of confirmation or order for conveyance; that sale was not infected by the consideration of the equitable principle that there must be given to the voidable sale seasonably exercised as to the sale of a part of the lands to W. S. Foreman. Frantz v. Lester,
The decree of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.