65 Ala. 51 | Ala. | 1880
— We think there is a failure to prove that Mr. Elledge was mentally incapable of understanding and transacting business, at any time which is material to be inquired about, in determining the present controversy. True, he was partially paralyzed; but those best acquainted with him say, his reasoning powers were very little impaired, if at all. Hence, so far as the question affects any transaction brought to view in this record, we think the testimony fails to overturn the presumption of sanity, which it is our duty to indulge until the contrary is shown.
The testimony convinces us, that Mr. Elledge was indebted to Mr. Walker, in the sum for which the latter recovered judgment, and that that indebtedness existed long before Mrs. Elledge filed her bill against her husband, to have the lands in controversy decreed to her. This being the case, it becomes necessary for Mrs. Elledge to prove the indebtedness of her husband to her, as the basis and foundation of the relief she seeks. Her suit and recovery against her husband are, in no sense, evidence against Walker, of the facts found and asserted in the decree, because' the latter was not a party to that suit.--2 Brick. Dig. 148, § 236; 1 Ib. 823, § 273; 1 Greenl. Ev. § 622. In this proceeding, Mrs. Elledge must prove her husband’s indebtedness to her, or, rather, the investment of her money in the lands, by as convincing testimony, as if there had been no former suit against her husband.
2. We have examined the testimony in this record with great care, and we reject from our consideration all that we deem hearsay and illegal. The record of the final settlement of James Cox’s estate, made February 4th, 1856, shows money assets coming to Mrs. Elledge at that time, amounting to $3,912.53. Probably some interest included in this. This sum, or the principal which produced this sum, had been previously paid to Mr. Elledge, the husband ; but the record does not inform us when it was paid. Shores, Mrs. Elledge’s grandfather, died about 1856. Elledge was administrator of his estate, and made a partial settlement March 8th, 1858. There was then distributed to Mrs. Elledge $316.20, which Mr. Elledge retained in his hands, as husband and trustee. Whether there was a final settlement of that estate ever made, and, if so, whéther there was further distribution, the record does not inform us. Mrs. Elledge testifies, that there came to her, (from her grandfather’s
The lands belonging to the estate of James Cox, father of Mrs. Elledge, were sold for division about the close of the year 1850. The sale was on a credit of one, two, and three years; and Elledge, the husband, and Wm. Cox, brother of Mrs. Elledge, became the joint purchasers of the homestead tract, at a price between eight and nine thousand dollars. They cultivated these lands together, and were tenants in common, until 1854. They then sold this tract to Bridge-forth, mainly or entirely on credit; and about the same time, 1854, purchased jointly the tract of land in controversy; a smaller, but more fertile tract; and paid most of the purchase-money in purchase-money notes given them by Bridge-forth. A small balance — three or four hundred dollars, probably — they paid, by agreement, to the estate of James Cox, balance of purchase-money for the lands, which Stinnett, their vendor, still owed to the estate. Thus, Elledge and William Cox became tenants in common of the Stinnett tract, and, for a time, cultivated it as such. At some time between 1854 and 1860 — probably about 1858 — Wm. Cox removed from the State of Alabama, having first sold his interest in the lands to Elledge. There is some testimony that two slaves, property of Mrs. Elledge, were used or sold in part payment of some of these purchases. There is, also, some testimony that, in dividing the slaves of the estate of James Cox, two were sold as a means of equalizing the division, and that Elledge and William Cox became the purchasers of these slaves. Whether these are the slaves which Mrs. Ellledge claims were hers, and were sold in part payment for the lands, is a question not satisfactorily answered in the record. In fact, this part of the transaction is left in great obscurity. The fact, it it be a fact, that Mrs. Elledge’s money and means were first invested in the Bridgeforth, or home tract, and, when it was sold, were reinvested in the Stinnett tract, can exert no influence upon her right to pursue her money, and fasten an equity on the last named tract. If the necessary facts be established, her equitable rights are the same against the second, as against the first investment. — Marsh v. Marsh, 43 Ala. 677.
The result of the evidence in this case is to establish, to
We have declared above what would be Mrs. Elledge’s claim, if this were an original suit by her against her husband. We have done so, because this is the light in which we must regard her claim in a suit against Walker, who was a creditor of Elledge before she asserted her claim, and who wTas no party to the suit by which title was devested out of Elledge, and vested in her. As we have said, that suit and that decree can not prejudice his rights. If he would have the right to proceed against the land in the absence of such suit and decree, that right has not been taken away from him by the decree, farther than it may be affected by the notice those proceedings give, hereafter to be considered.
4. Walker, the defendant, recovered judgment against Elledge, April 8th, 1887. The transcript of that recovery is twice copied in the record, and in each place, the date of the judgment is given on April 8th, 1868. This is evidently a mistake. The bill of Mrs. Elledge charges it was rendered April 8th, 1867; and each of the transcripts shows the first execution on this judgment was issued April 22d, 1867. Execution could not be issued in 1867, on a judgment rendered in 1868. The transcripts show, as we have said, that execution issued on this judgment, April 22d, 1867. It is not shown whether or not this execution went into the hands of the sheriff. The statement in the certified transcript, which seems to have been received without objection, is, that on “said judgment sundry executions were issued, the first of which was issued on the 22d April, 1867 ; and one of which was issued on the 28th January, 1869, to Wm. H. Lentz, then sheriff of Limestone county in the State of Alabama ; and was levied by said- sheriff on the lands,” &c. Under this execution and levy, the lands in controversy were sold by the sheriff, and bought by Walker, who received the sheriff’s deed. Judgments are not liens in this State, as the law then stood, and now stands. — Dane v. McArthur, 57 Ala. 448; Gamble v, Fow
5. We have shown above that Mrs. Elledge, as against her. husband, has an equitable lien for the sum of her money and effects which wentinto the purchase of the land, with interest upon it from the time her husband was removed as her trustee. This, until she asserted it by suit, is what is called a latent equity; good against the trustee, but unavailing against “ the title of creditors, or purchasers for a valuable consideration, without notice.”- — Code of 1876, § 2200. In Preston & Stetson v. McMillan, 58 Ala. 84-94, we construed this and connected sections of the Code, and held, that “creditors, under this statute, are judgment creditors having a lien.” That case contains a full discussion of this question, and we will not repeat it here. Was Walker a creditor without notice, at the time he acquired his execution lien?
6. Mrs. Elledge commenced her suit against her husband in May, 1867; and on the 31st day of that month the decree of the chancellor was rendered, removing her husband from the trust, vesting the title of the lands in her, and clothing her with all the rights and powers of a feme sole. This suit and decree, concerning this identical land, was constructive notice to Mr. Walker, and all others, of the equitable claim she asserted, and disarms him of all right to claim as a creditor without notice. He occupies no higher ground than Elledge himself would have occupied, if this were an original suit against the latter, to have the trust declared. — Doe ex dem. v. Magee, 8 Ala. 570 ; Center v. P. & M. Bank, 22 Ala. 743, 757; Fash v. Bavesies, 32 Ala. 451, 456; 2 Brick. Dig. 233, §§4,5.
. 7. Another important result flows from the principles we have declared above. Mr. Walker not being a party to the suit instituted and prosecuted by Mrs. Elledge against her husband, that suit, and the decree rendered therein, have no other effect on his rights than to charge him with notice of Mrs. Elledge’s equity. It did not, as to him, devest the title out of Elledge, but left all the right and interest of the latter subject to seizure and sale under Walker’s execution. By
The decree of the Chancery Court is reversed, and we proceed to render the decree the Chancery Court should have rendered. It is therefore ordered and decreed, that complainant, Mrs. Elledge, is entitled to relief. This she can ■ claim under her prayer for general relief. It is referred to the register to take and state an account, showing the amount and value of complainant’s money and effects which went, first, into the purchase from Stinnett of the undivided half interest in the lands ; and in taking this part of the account, she will be entitled to have allowed to her any effects of hers which went first into the purchase of the home tract, and, upon a sale of that tract to Bridgeforth, was then invested in the Stinnett tract. Second, if any of her effects were used in the purchase from William Cox of his undivided half interest, she must be allowed the value of the same as a lien and trust on that undivided half. She will be entitled to interest on these sums from May 31st, 1867. She is liable for reasonable rents of the lands from the time Walker’s right accrued, or from the time he could claim rents under his suit in ejectment, with interest on the sums annually due; and must be allowed credit from each year’s rent, for taxes paid, and necessary repairs and improvements put on the property during the year. For any balance found due her, she will be entitled to a decree fastening a lien on the land, and decreeing its sale in payment thereof, unless otherwise paid. In passing on this account, the register will consult the legal testimony, documentary and parol, found in this record, the admissions in the pleadings, and any other relevant testimony that may be offered. He may re-examine any of the witnesses heretofore examined, on the questions herein referred. He will report his finding to the Chancery Court. Let the injunction of the action of ejectment remain in force, until the further order of the chancellor. All other questions are left open for decision by the chancellor. Let the.appellee.pay the costs of this appeal.