Sparkman v. Williams

Mar 11, 1954

8 Div. 641

Versions:71 So. 2d 274

260 Ala. 472

1954 Ala. LEXIS 323

GOODWYN, Justice.

Aрpeal from decree ordering a sale of land for division. The parties are all the heirs of George W. Sparkman, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dеceased, who, at the time of his death, held the record titlе to said land. Appellant is-one of his sons.

Appellant, by his cross-bill, seeks to have title to the land vested in him on two theories, viz.: (1) Specific performance of an oral agreemеnt allegedly made with his father at the time of the purchase of the land in 1921. Appellant at the time was twelve years of agе. The substance of the alleged agreement is that appellant and his father entered into an oral agreement whеreby title to the land was to be taken in the father’s name; that the father would erect thereon a house; that a mortgage was to be placed on the land in order to obtain funds for thе purchase of the land and erection of the house; .thаt said house was to be a home ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for appellant and his father and mother; that appellant was to pay one-hаlf and his father one-half of said mortgage, taxes, insurance аnd repairs; that appellant, after his father’s death, was to maintain and support his mother; and that, on his mother’s death, the hоuse and lot was to become the property of appellant. It is alleged in the cross-bill that appellant fully complied with the terms of said agreement. (2) That appellant аnd his father were joint adventurers in acquiring said land and erecting the house thereon and that, as s.uch «joint adventurer, appеllant is entitled to an undivided one-half interest in the land.

The sufficiency of the-bill of complaint, filed by appellees, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and appellant’s cross-bill are not presented for review. *473• Although one of the assignments of error goes to the overruling of aрpellant’s demurrer to the bill, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that point is not argued in brief and, therefore, will not be dealt with. Morgan County v. Hill, 257 Ala. 658, 659, 60 So.2d 838; MacMahon v. City of Mobile, 253 Ala. 436, 438, 44 So.2d 570; Alabama Power Co. v. Thompson, 250 Ala. 7, 10, 32 So.2d 795, 9 A.L.R.2d 974; Louisville & Nashville R.R. Co. v. Holland, 173 Ala. 675, 694, 55 So. 1001. There is no cross-assignment оf error challenging the court’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍action in overruling appellees’ demurrer to the cross-bill.

The one point for decision is whether the trial court erred in denying appellant the reliеf sought by his cross-bill. That issue, as it comes to us, is one of fact only. Thе rule is that' written opinions are not required “in cases where thе decisions merely reaffirm previous decisions, or relate to questions' of fact only, or when the cases decided wоuld, * * * [in the court’s opinion], serve no useful purpose as prеcedents”. Code 1940, Tit. 13, § 66. This case comes within that rule. Suffice it to sаy that we have carefully examined the evidence, and hаve considered and discussed it in consultation. The testimony was taken orally before the trial court and is in conflict. Applicable here is the- firmly established, and oft-repeated, rule that when testimony is taken orally before the court, and is in conflict, a finding thereon by the court has the weight and effect of a jury’s vеrdict and will not be disturbed on appeal unless plainly and palpably wrong or against the great preponderance of the evidence. Lucas v. Lucas, 258 Ala. 515, 519, 520, 64 So.2d 70; Spruiell v. Stanford, 258 Ala. 212, 216, 61 So.2d 758. We are not willing to say that the trial court’s decision should be disturbed under the authority of this rule.

.Affirmed.

./LIVINGSTON,. C. J., and SIMPSON and MERRILL, JJ., concur. . .