Parks v. Parks

66 Ala. 326 | Ala. | 1880

STONE, J.

The purpose of the present bill is to have a deed, absolute on its face, made by John W. Parks, September 10th, 1869, to William D. Parks, as administrator of Hugh L. Parks, declared a mortgage security for the payment of-six hundred dollars and interest, moneys of the estate of said Hugh L., used by John W. Parks, then co-administrator of said Hugh L.’s estate, in the purchase of said house and lot; and the bill seeks to redeem said mortgage property. The chancellor dismissed the bill, on the merits; and the question for our decision is, whether the complainants have made out their case with that clearness of proof, which requires us to reverse the finding of the chancellor.—Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387.

To sustain a bill of this kind, the evidence must be clear and convincing — even strong and stringent, in the language of some of the cases.- — 2 Brick. Dig. 271-2, §§ 316 to 320, inclusive. In considering the evidence in this cause, we attach no importance to casual or loose expressions by John "W. Parks, made while occupying the lot, styling the premises “my house,” “my premises,” &c. Such remarks are frequently indulged, and properly indulged, by mere lessees, or tenants. They are but the equivalent of ‘ my residence’ — the place where I reside — and properly convey no other idea. If this record contained only this evidence, we would regard it as wholly insufficient. But it does contain other evidence. The testimony of the witness Hargiss is, that “ at the time I proposed to buy these premises from W. D. Parks, after John W.’s death, W. D. told me that he had thought that he had a mortgage on said premises, but, on examination of the papers, he found that it was a deed which he held to said premises.” Again : “ My best recollection is, that he told me he discovered he held a deed to said land, instead of a mortgage, on examination of his papers after John -W. Parks’ death.” Now, the circumstances under which this conversation was held, were well calculated to impress them on the memory of the' witness. It was held when Hargiss, the witness, was trying to negotiate a purchase of the lot. And this view of the case is strongly corroborated by the testimony of Judge Kyle, who shows, from the tax-assessments and tax-books in his possession, that, up to the death of John W. Parks, this property was given in for taxation, and taxes paid on it, in the name of John W. Parks, and not as of the estate of Hugh L. Parks. It is also corroborated, very strongly, by the testimony of Mrs. Margaret L. Parks, and by the character of repairs and improvements put on the property by John W. Parks; improvements a mere tenant is not likely to make. And the defendant’s only witness, Starnes, so far from weakening this testimony, tends himself to confirm it. Against this view, we find nothing but the unsworn denials in the answer of William D. Parks. He himself is not examined as a witness, although he could have testified in his own. behalf to any facts known to him, except those growing out of-transactions with, or statements by John W. Parks, deceased. Code of 1876, § 3058. He was competent to testify as to the alleged conversation between him and Hargiss. On this feature of the case ma.de by this record, we think complainants should have had relief.

But there is another aspect of this esse. Reaching the conclusion the chancellor did, there was nothing.left for the cross-bill to operate on, and consequently he dismissed it. The result of' his decree was, that the title to the property was in Wm. D. Parks, the administrator, with the privilege and right of election in Sallie Parks, sole heir of Hugh L. Parks, to take the house and lot when she becomes twenty-one years of age, as being bought with her money, or to disavow the purchase, and claim the money; the former with rents, and the latter with interest. Our decision, announced above, changes the relations of the parties. The house and lot being purchased and paid for with the moneys of the estate of Hugh L. Parks — this being admitted in the bill, and also proven — a trust results in favor of the heir of the estate, to have the title of the property decreed to her, if she elect to claim it.—Preston & Stetson v. McMillan, 58 Ala. 84, and authorities cited; Tilford v. Torrey, 53 Ala. 120; Kavanaugh v. Thompson, 16 Ala. 817; Perry on Trusts', § 127. But the heir or distributee, being an infant, had not capacity to make the election; and hence the cross-bill was filed for the infant, to have the election made for her under the sanction of the court. — 2 Story’s Equity, §§ 1080 a, 1352-3,-6, 7. The cross-bill having been dismissed, and no appeal to this court from that decree, we have no power to reinstate it, or to grant any relief upon it. We would, therefore, being doing injustice to the infant, if we were to proceed to render a final decree, in the present state of the record. We will reverse and remand the cause, that the guardian ad litem of the infant may file aD other cross-bill, if so advised. Of course, if she has attained the age of twenty-one years, she can make her own election, without the sanction of the court; and no cross-bill would seem necessary, if W.D.Parks is in life, and is willing to convey to her. We do not wish to be understood as ordering or directing that the election be made for her, to take the house and lot. That may depend upon the condition of the estate, and the present condition of the property. The chancellor will have the means of informing himself correctly on these questions, and, in deciding them, will consult the interests of the infant. Let the costs of appeal be paid by William D. Parks.

Beversed and remanded.

Bkickell, C. J. not sitting.