94 So. 587 | Ala. | 1922
In January, 1920, Julius A. Powe, seised and possessed of the land in controversy, executed and delivered to his four children a voluntary deed to the same reserving unto himself for life "the rents." This is conceived in the brief for appellant *528
to amount to the reservation of a life estate in the land, and properly so, we think. Reed v. Reed,
Complainants are entitled to file this bill for the protection of their estate in remainder notwithstanding they are not in actual possession. Shipman v. Furniss,
The argument that the deed to complainants savored of maintenance, and hence that they should not be allowed to proceed in this cause, is answered by the decision in Gandy v. Fortner,
If the bill be taken as intending to charge fraud, that is, fraud other than undue influence, it would be seriously defective in failing to set forth clearly the facts constituting fraud; but we read the bill as charging the procurement of the conveyances to defendant Frank H. Powe by means only of that species of fraud known as undue influence. We consider the averments of the amended bill — the amendment withdrew the averment of the grantor's mental incapacity — as equivalent to the averment that the relations between Julius A. and Frank H. Powe were confidential, that the letter had acquired a dominating influence over the former, and exercised that influence to procure the execution of the deeds in controversy. These averments sufficiently challenge the validity of the deeds as having been procured by undue influence. Coghill v. Kennedy,
From what has been said it appears that complainants are not entitled to immediate possession or enjoyment of any estate in the land and hence that they are not in a position to file a bill for partition. Wheat v. Wheat,
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.