51 So. 360 | Ala. | 1910
Appellant, now married a second time, and Squire D. Brown, now deceased, intermarried on February 23, 1894. Appellee is the son of deceased by a former marriage. Prior to his second marriage Squire D., by a deed bearing date December 1, 1892, on a recited consideration of $6,000, conveyed to appellee substantially all of his property,. consisting of about 2,000 acres of land in'the county of Tuscaloosa, Squire D. died in March, 1905. In June, 1906, appellant, on the recited consideration of $100 and love and afleo tion, executed to Joe D. a quitclaim of all her interest in the iands of her deceased husband, including some pieces which had been omitted from the conveyance by her husband, or had been since acquired. The bill was filed in March, 1908, and prayed that the deed from Squire D. be vacated and annulled and held for naught as in fraud of her marital rights; that dower be assigned and homestead set apart; that the quitclaim be set aside as procured by undue influence, a.nd for an accounting of the personal estate of the complainant’s deceased husband. . The chancellor wrote a decree sustaining the deed by the deceased husband, but annulling the later quitclaim, and granting other relief. From that decree by appeal and cross-appeal the cause is brought here for review.
The testimony has had careful consideration, and with this, and some observations on its broadest phases, the parties must be content. It appears that months before Squire D. Brown began to visit appellant am occasion arose upon which men frequently hunt cover for their property. He was surety on the official bond of King, the sheriff of Tuscaloosa county, against whom a summary motion was pending and other suits threatened as he knew. In the fall of 1892 King was approaching the end of his term as sheriff, and had been elected for clerk of the circuit court. Squire D. Brown consulted an attorney as to how he might evade liability. Being informed that no evasion was possible, he announced his expectation that he would be re
Appellant further insists that she must have relief against the deed for the reason that, though made on the day of its date, it was not recorded until after her marriage to the grantor. In other words, she claims protection under the statute of registration against the unrecorded conveyance as a bona fide purchaser for valué. Counsel concede that this proposition goes someAvhat farther than any decided case, hut insists that it is sound upon principle. As between the immediate parties, marriage is in laAV a civil contract, and is everyAvhere held to he a valuable consideration. But it is valuable in ways differentiated from that valuable consideration which will support a contract in that ordinarily the word “valuable” signifies that the consideration so described is pecuniary, or convertible into money. To this marriage is an exception. — 1 Parsons’ Contr. 468. Marriage has hardly yet been reduced to the level of a contract or bargain and sale, nor do we find that it has ever been held that the statute of registration is intended to advise persons contemplating matrimony of the property and contract status of the other party to the contemplated engagement. It is reprehensible for either party to conceal the fact that he or she does not own large properties upon the faith of the reputed OAvnership of Avhich, in part at least the other may properly enter into an agreement of mar
In Richardson v. Skolfield, 45 Me. 389, the widow demanded her dower against an unrecorded mortgage.The court said: “The demandant had no right in the land which could be affected by the matter of the registry of the mortgage. Her inchoate right of dower was
In this state, at a time when marriage vested the. wife’s personal property in the husband, it was held by this court that the fact of marriage without moré did not constitute the husband a purchaser within the contemplation of that clause of the statute of frauds which then declared that “when any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under them, possession shall have remained for the space of three years, without demand made and pursued by due course of law, on the part of the pretendéd lender, etc., the same shall be taken as to the creditors and purchasers of the person aforesaid so remaining in posses-, sion, to be fraudulent within this act, and the absolute, property is with the possession, unless such loan, etc., be declared by will or deed in writing, proved and recorded.” It was readily conceded that marriage is a valuable consideration to support a contract, and that the husband became by his marriage in a certain technical sense a purchaser, or came by his wife’s property by purchase, but it was said to be clear that the word “purchaser” in the statute was used in its popular sense, and meant one who acquired property by bargain and sale for a valuable consideration. — Perry v. Graham, 18 Ala. 822. And in an earlier case this court said that the wife could not with any propriety be regarded as the purchaser of her husband’s estate by the simple act of marriage. — Gibson v. Carson, 3 Ala. 421. We think, therefore, that this alternative contention can be of no avail to the appellant.
The attack up the quitclaim of June 11, 1906, which attack was sustained by the chancellor, proceeded upon two theories: (1) That it was procured by actual fraud; and (2) that it was constructively fraudulent because affected by the confidential relation then existing between the parties. If the parties to this deed stood to each other in the ordinary relation of grantor and grantee, the testimony of the witness Squires and Burchfield, not to mention the testimony of the grantee, would be effective to disprove the charge of actual fraud. These witnesses established to our reasonable satisfaction that Mrs. Nelson well understood the nature and effect of the quitclaim generally, and that if she did not understand that it conveyed her interest in more land than her husband had conveyed to his son that defect in her understanding of the transaction must be attributed to her lack of due diligence as a free agent. We cannot in the evidence find that she was induced to the execution of the deed by any actually fraudulent misrepresentations or devices of the grantee therein. The charge of fraud constructive merely must, however, be disposed of on different principles with a different result.
The law presumes the exercise of undue influence in transactions inter vivos where confiedential relations exist between the parties, and puts upon the donee,, when shown to be the dominant party in the relation, the burden of repelling the presumption by competent
This, by necessary conclusion, disposes of the subsidiary questions discussed, and must result in an affirmance of the decree of the chancery court on both appeals.
Let each party be taxed with one-half the costs of this appeal.
Affirmed on both appeals.