56 So. 124 | Ala. | 1911
Appellee filed this bill, individually and as administrator of the estate of Carrie Woods, alias Carrie Robinson, deceased, against the appellant; and seeks the cancellation of two deeds by Carrie Woods to the respondent, and the surrender and delivery, by the respondent, of $1,500 belonging to the estate of complainant’s intestate, which sum, the bill alleges, was fraudulently appropriated by the respondent to his own use. The bill further alleges that the intestate,
'I'he bill does allege some connection or relation between the acts of the respondent in procuring the deeds, and those in procuring the money; and while, of course, they are separated by a considerable lapse of time (the one culminating during the lifetime of the intestate, and the other, after her death), yet the relation or connection shown between the two wrongs complained of, is sufficient to authorize relief as to the taking of the money, provided the main equity of the bill is made out as for the cancellation of the deeds. Moreover, the demurrer did not go to this part of the bill only, but went to the entire bill, to the effect that it showed that the complainant had a complete and adequate remedy at law. Had the demurrer been directed to that part of the bill only which seeks the recovery of the $1,500, we are not prepared to say that it should not have been sustained. If the fourth ground of demurrer could be said
The address of each of the demurrers was as follows: First demurrer: “Comes now the respondent and demurs to the original bill.” Second: “Comes the respondent and demurs to the amended bill heretofore filed.” Third: “Comes the complainant and demurs to the amended bill heretofore filed.”
The word complamcmt is here used evidently as meaning “respondent,” and we treat it as a clerical error.
Each of the demurrers was addressed to the bill as a whole, and not to any part of it and the bill as a whole was clearly not subject to any one of the grounds of demurrer insisted upon in the argument of counsel for appellant. The court therefore committed no error in overruling the demurrer to the bill as last amended. After the demurrers were overruled, the respondent answered, denying the equity of the bill, paragraph by paragraph, and set up few if any affirmative facts as a defense — thereby placing the burden of proof upon com-plainant.
. A great many witnesses were examined on behalf of each party; and the case was submitted for final decree, upon the bill, the answer, and the proof as noted by the register. The chancellor rendered a decree granting the relief prayed in the bill; and from that final decree the respondent prosecutes this appeal. After a careful reading of all the evidence shown in this record, we are unable to concur in the conclusion reached by the chancellor that the complainant was entitled to the relief prayed in his bill and awarded in the chancellor’s decree.
It is true that after complainant proved the confidential relation between the grantor and the grantee, the burden of proof as to undue influence was shifted; but the evidence of respondent discharged this burden.
We do not mean to say that none of the averments of the bill are made out — some of them are not even controverted; but a number of others, material and necessary to the relief prayed and granted, are not proven to our satisfaction, while some are actually disproven.
It is shown that Carrie Woods, the intestate, otherwise known as Carrie Robinson, many years ago intermarried with one Lem Woods, who committed a serious crime — a capital offense — and in consequence thereof, absconded, leaving Mobile, the home of the parties concerned in this litigation; that he left about 20 years ago; that Carrie, his wife, and the appellant, Allen Robinson, thereafter lived together as man and wife, though Carrie never obtained a divorce from Woods, that they lived in this manner for .a number of years, and Carrie for a long time was known by the name of Carrie Robinson. It is also shown that the complainant was a half-brother of Carrie, and therefore inherited her property, subject to the rights of her husband, Lem Woods, she having no children or other nest kin. It is shown by some of the witnesses who boarded with Carrie and the respondent during the time they lived together as husband and wife that they were deemed’to be husband and wife, and were accordingly treated by the public; though it is undisputed that there was never any lawful marriage between them.
While the complainant testifies to the bad state of feeling between his sister and himself, and to- the intimate relations between her and the respondent, he also claims, in other parts of his testimony, that she had said she intended to leave her property to him and his children, and that she had declarer) that the respondent should not have her property. But he contradicts himself, flatly and repeatedly, as to many of these declarations attributed to his sister, as to conversations between them, and those between her and the respondent.
It is shown by the depositions of the witnesses George J. Sullivan, of the accuracy of whose testimony there seems to be no dispute, who appears to have been disinterested, and who was introduced by the complainant, that the respondent, Allen Robinson, and Carrie Woods, otherwise called Carrie Robinson, had lived together, at one place near the residence of the witness, for 15 or 20 years; that they rented the house in which they lived from his mother, and that he thought they were husband and wife — they being generally so regarded in the community; that the respondent was a
It was shown by one of the complainant’s witnesses, Alfred Jenkins, ivho seems to have been favorably inclined to the complainant, that Carrie told him, the night she died, that she and complainant had fallen out and that complainant had talked of beating her; that witness tried to get her to make up with complainant, and she said she would if he would beg her pardon, etc. Yet it was admitted by the complainant himself that he was not speaking to' his sister at the time of her death, nor just prior thereto. It is shown by this record — by plaintiff’s own testimony — that notwithstanding this, and the fact that complainant had not visited his sister during her last illness, he went to her home aind into her room about twenty minutes after her death, in order to get a chest which he thought contained her money, and carried the same to his house where he broke it open and took out some papers; and that he delivered this chest to respondent who demanded it as the property of his wife.
As before stated, it is shown by the testimony of the complainant himself and by that of a number of the witnesses, that Carrie had often expressed the intention of leaving her property to Allen; though it should be stated that at other times they testified that she had said she did not want Allen and his people to get any of her property.
While the evidence does not fully satisfy us as to whether this eleven hundred dollars was the separare property of Carrie, or that of Allen, we are inclined to the opinion that the complainant has failed to discharge the burden of proving that it was Carrie’s money. We find that the proof contained'in this record conclusively shows that Allen purchased the property from Carrie, and paid her a valuable consideration therefor in cash; and we find nothing to show that these conveyances were obtained from Carrie by undue influence, fraud, or force. To the contrary, it appears that it was the act of her free will and accord. And there can be no doubt that she had the right to make these conveyances upon the consideration of money paid by Allen, nor for that matter, the right, if she soi desired, to give him the property; and we think the proof shows that it was her desire that he should have the property — which was only natural, under the circumstances.
While it is shown that the relation between intestate and respondent was unlawful, yet it is undisputed that they did live as husband and wife for a great number of years, and they seemed to have treated their business and property as that of legal husband and wife. They were both industrious and frugal, and desired to save and accumulate property, in which they were successful
This record satisfies us that such was the intention and purpose of Carrie in making these conveyances to Allen. It may be that the whole of the consideration was not paid, or that the money which passed Avas the money of both' grantor and grantee, or that it was the property of Carrie alone. As to this there is no proof. HoAvever, even conceding that the proof had sIioavu that there Avas in fact no consideration paid by Allen, yet it nevertheless conclusively appears, we think, that the conveyances were voluntary, there being absolutely no proof to shoAV any persuasion, threats, undue influence, or fraud on the part of Allen to induce Carrie to make them. And the intestate being at the time of her death on unfriendly terms with her half-brother, her sole next of kin, it was but natural that she should prefer that Allen should have her property.
It was shown by the testimony of Dr. Sullivan that the respondent was an industrious negro, and had accumulated considerable money, he having left Avith Avitness, at different times, various sums, amounting to more than 1,700 at the time witness paid it OArer to respondent. So it is not at all improbable that he had, or could have obtained, the $1,800 with which, as testified, he purchased this property. In fact, the testimony of Dr. Sullivan, who attested the conveyances, and'that of the notary who took the acknowledgments, is to the effect that the money Avas actually paid over at the time of the making of the conveyances. There is no proof Avhatever to contradict this, and considering all the evidence and all the circumstances connected Avith the
It follows that the decree of the chancellor must be reversed;.and a decree will be here rendered dismissing the bill of complaint.
Reversed and rendered.