107 Ala. 331 | Ala. | 1894
The bill was lilecl on the 11th day of January, 1892, by Susan M. Gilmer against A. Campbell Jones, Busan W. Jones, his wife, Eleanor E. Gilmer, Rebecca C. Gilmer, and Annie E. Pentecost, the last four named being daughters of the complainant.
The bill in substance alleges (1), that the complainant is the owner and is seized in fee of a certain pared of land in the city of Montgomery 'which she acquired l>y deed executed to her on the 24th day of February, 1875; (2), that she has been in possession of the property since that date, the same being of the value of more than eight thousand dollars; (3), that on the 8th day of May, 1882, the property was sold for city taxes, and purchased by one Marlin for 8164.19, the city council of Montgomery making him a deed the same day, and on the 21st day of August, 1882, the property was sold for state and county taxes, Marlin likewise becoming the purchaser for the sum of $39.05, and receiving a certificate of sale; (4), that afterwards, on the 13th day of September, 1882, Marlin transferred said certificate received from the probate judge, and also all his right, title and interest, under the tax deed from the city council, to the defendant, A. Campbell Jones ; . (5), that on April 22d, 1890, the probate judge of Montgomery county conveyed the property to Jones as the holder of the certificate, and p6), that on June 17th, 1890, the latter, up)on the recited consideration of love and affection, executed a deed to his wife and her said throe sisters by which he conveyed the property to them, his co-defendants herein.
The substance of the allegations upoon which she, rests the equity of the bill may be thus stated : That a few days before said Jones became the transferee of the tax titles, he reminded complainant, that as the time was passing, the property ought to be redeemed, whereupon she informed him of her inability to do so, owing to her impecunious condition ; that ho then offered to advance the money to her, if she would agree to pjay him when able ; and that she then authorized him to act for her in the redemption of the property. As explanatory of the, relationship which existed between them at the time, she alleges that, she frequently and constantly advised with Jones about her business affairs; that she had often procured him to act for her in such matters, and
Complainant also alleges that the defendants owe her a much larger sum than the amount of $205.84 paid for the taxes, on account of the use of the property, after deducting a reasonable amount for the food supplied her, as also the various amounts paid for taxes ; but she says she is willing, if mistaken in this, to pay any balance that may be found due to the defendants 'on an accounting, for the purpose of doing complete' equity, and she submits herself to the jurisdiction of the court, in all things pertaining thereto. The purpose of the bill is to secure a decree declaring that by virtue of the alleged fiduciary relationship existing between the complainant and Jones, his purchase of the tax titles shall enure to her benefit, and that upon reimbursing him, she be allowed to redeem the property, and have a cancellation of the several deeds, hereinabove recited, as clouds on her title.
The defendants filed a joint answer, and, as far as ■necessary to be stated, present their claims and defense as follows : Admitting the tax sales, and purchases, the transfers and deed to Jones, and the making of the conveyance by him to his co-defendants; also admitting that Jones did tell the complainant the property had been sold for taxes and should be redeemed, and that
They set up also, that about March, 1884, the complainant abandoned the property and left the State, and that since the purchase! by Jones of the certificates, she has made no claim to the property.
They deny any agreement to furnish the table and pay the taxes in consideration of the use of the property, but say they furnished complainant with a home and the necessaries and comforts of life without charge, and solely on account of the love and affection they have for their mother, who has never, they allege, since October, 1883, provided in any way for the family or contributed to the expenses or asserted any right of control over the property.
They also allege, as meeting the allegations of the bill in respect of indebtedness to the complainant, on their part, that, from 1873 to 1880, Jones paid taxes on the property for her accommodation, which she has never repaid, amounting to about $526, and that about April, 1883, complainant executed a mortgage on the premises to one Wade for $210, which she did not pay, and which mortgage said -Tones, 1o prevent a sale and save a home for-his co-defendants, purchased, and of which he, took a transfer. They also allege, on the same line, that Jones “at various times between the year 1873 and the vea-r 1880, paid, at the- request of complainant, various sums of money, amounting in the aggregate
In referring to the purchase by Jones of the tax certificates in his own name, the defendants allege, “that in the year 1880 respondent, Jones, not haying been reimbursed for any of the sums paid for complainant, and complainant having failed to secure him for what he had already paid out, or for the amount necessary to be paid out for the taxes of 1881, declined to make any further payment for or on account of the complainant, and ceased from that time to act for complainant; and that after said property had been sold for taxes, said A. Campbell Jones, with his own funds purchased said certificates in his own name, and took a transfer thereof, to himself.” The answer contains the following as giving the motive which inspired him in making the conveyance to his co-defendants ‘ ‘That such deed was exe ■ cuted and delivered in pursuance of the purpose of said A. Campbell’Jones in securing them a home, the complainant being indebted to the said Rebecca C. Gilmer, Eleanor E. Gilmer and Annie C. Pentecost in the sum of one thousand dollars, which said sum, with the interest thereon, has been due and unpaid for more than ten years;” and the following, in the same connection: “And respondents aver that the said Jones, in executing said conveyance, was prompted by the desire of securing a home for them; that the said Eleanor E. Gilmer and Rebecca C. Gilmer are both unmarried women, and have, by reason of the ownership of said property, been able to earn a living for themselves by taking boarders.” We have stated the case as made by the pleadings .with a view to clearly showing the nature of the cause, and the issues between the parties, as preliminary to a discussion of the evidence and the principles of law involved in this family dispute over the ownership of the home in which the parties had dwelt for many years, and in which they resided together, not only when the bill was filed, but up to the time of the mother's death in March, 1893.
We will add that the defendants filed an amendment to their answer setting up by way of plea, "that the matters and wrongs complained of happened more than six year’s prior to the filing of the bill of complaint,” and further, “that the complainant knew of the alleged fraud and wrong in her said bill complained of, more
Complainant having died, pendente lite, the suit was revived in the names of' her administrator and five children, other than those who were defendants.
The chancellor, on final hearing, dismissed the bill without assigning reasons, and the appeal, by the complainants, brings the case here for review.
Spratt v. Wilson, 94 Ala. 608 ; Adams v. Sayre, 76 Ala. 509, S. C. 70 Ala. 318 ; Pearce v. Gamble, 72 Ala. 341; Firestone v. Firestone, 49 Ala. 128; Walker v. Palmer, 24 Ala. 358; McKinley v. Irvine, 13 Ala. 681.
If, therefore, Jones was authorized by, and agreed with, the complainant to redeem her property from the tax sales, or to purcha.se for her benefit the outstanding tax titles with means to be furnished by him, upon protni.se by her to repay him when able, as alleged in the bill, then, under the influence of the rule of law we have stated, a constructive trust for the complainant’s benefit will be raised up, which a court of equity will declare and enforce, and the taking of the transfer in his own name will be treated as having been done for the more purpose of securing to him reimbursement for the amount advanced. — O’Bear Jewelry Co. v. Volfer, 17 So. Rep. 525; 1 Perry on Trusts, § 206, 2 Penn. Eq. § § 1044-1050; Collins v. Rainey, 42 Ark. 531; Boswell
In looking at the case from the standpoint of the defendants, as disclosed in their answer alone, we do not know which of its two leading features most excite surprise — whether it be the fact that a son-in-law, who protests love and affection for his wife’s mother, and who, up to that time, had contributed liberally to her assistance and support, would undertake to acquire for himself, in hostility to her, her home worth from seven to ten thousand dollars, for the paltry sum of about two hundred dollars, without telling her, as far as is shown, prior to the purchase, that he designed doing so, or making any effort to.secure a loan for her on the property, which we may well suppose, in view of its value, could easily have been done; or whether it be-the other
Most of the facts to which we will refer are taken from the testimony of the defendants, and more particularly from the.deposition of A. Campbell Jones himself. Dr.
The facts, as they appear in this record, clearly prove to our minds, that Mrs. Gilmer, owning a home that would have yielded fifty dollars per month — a sufficient sum to secure her a comfortable living — was willing for her children, as occasion might require, to share it with her and make what profit they could by keeping boarders, after paying the expenses, repairs and taxes, provided she could have a home there ; and that the defendants were content with this arrangement. She made no charge for rent, and they made no charge against her for board, or expenditures on the property; nor did the parties institute comparisons, or make calculations to ascertain who derived most benefit from this method of conducting the family’s domestic affairs. It is shown that there was no express agreement to this effect, but all the circumstances prove that such was the tacit understanding. It was a natural course, adopted by common consent, and it is no surprise, in view of the close and intimate relationship of the parties, that it was not made the subject of express contract and bargain. We do not find any satisfactory evidence of the assertion of a hostile claim against Mrs. Gilmer, by virtue of the tax purchases, until 1890, and she was all the while, even up to her death in 1893, in legal possession of the property. The allegations of the answer that she abandoned the place in 1884, and left the State, are not attempted to be sustained by the defendants, and they appear to rest upon no more substantial foundation than a motherly visit of three weeks duration, which Mrs. Gil
There is still another fact, proven by Jones, which is inconsistent with the theory of the defense. In April, 1883, six months or more after the piurchase under investigation, Mrs. Gilmer made a mortgage on the property to one Wade. It cannot be supposed that Jones was ignorant of this transaction. He and Wade were employed in the service of the same railroad company, Wade being master car builder and Jones yard master. So far as appears, the latter made no objection to the giving of the mortgage, although he now says the property then belonged to him, Mrs. Gilmer having only the statutory right of redemption. Not only did he fail to object to it, but in 1884, he paid the amount to Wade, taking a transfer to himself of the mortgage, thus preserving it as alien on the property; and he states, when he testified, that the mortgage then belonged to him. It is also proven that when in 1891, Jones presented to Mrs. Gilmer plans of a house he propeosed to build, she at once protested and declared the house should not be constructed, as the property was hers. Jones seems to have then desisted from his purpose, as we find no evidence that .a new house was ever erected.
If we must seek the motive and real purpose of the subsequent assertion of absolute ownership by Jones and his grantees, it is not difficult to find. Before the transfer to his wife and her three sisters, he told Mrs. Gilmer that if she would secure him and the three daughters for indebtedness, claimed to be due them, by giving them a mortgage on the property, he would release all claims to it, thus indicating that, at that late date, after the claims of the daughters for $1,000, and his also, if he really had any, had doubtless become barred, he undertook to use the tax purchase as the means of reinstating demands, which could no longer be maintained in law. His explanation that he made • the transfer to his wife, and “bo the heirs” who had assisted his wife in keeping up the property, indicates the existence of the idea in their minds, that the defendants were entitled, upon some moral or equitable ground, to the enjoyment and ownership of the property, to the exclusion of the other children. The testimony of Jones strongly indicates, that the tax purchase was seized upon as the only
We conclude that Mrs. Gilmer is fully corroborated by the several circumstances and considerations to which we liave referred, and that the theory advanced by Jones and his co-defendants is not in harmony with the various facts shown by the evidence ; hence, in the absence of any impeachment of lier veracity, we accept her testimony as true, and declare that the chancellor erred in his finding on the facts, if his decree was based upon a supposed deficiency of proof. In reaching this conclusion Jones will suffer no loss, since the relief can be granted only upon reimbursement of the amount expended, for which under the offer to do equity, and submission to the jurisdiction of the court, contained in the bill, we can and will decree a lien upon the property. thus providing ample security — the only condition he claims to have demanded in proposing to Mrs. Gilmer to redeem the property. We have discussed the facts more fully than we would otherwise have done, because of the earnest argument of counsel for appellees, in support of the decree, and because we feel constrained to a different conclusion from that reached by the chancellor.
In view of the allegations of the “bill, and of our conclusions upon the facts, we have not found it necessary to consider whether Jones occupied such a relation to the property and Mrs. Gilmer, as would, in the absence of the agreement or understanding which existed, have disabled him from purchasing the tax titles for his own benefit, aiid upon that question wo now express no opinion.
We will notice the dótense of the statute of limitations, which is insisted upon by appellees. The contention that this is “an action for the recovery of real estate sold for the payment of taxes,” within the true intent and meaning of section GOG of the Code of 1«86, and that since Mrs. Gilmer discovered, more than a, year before the filing of the bill, tlm purchase by the defendant, Jones, and the assertion by him of an adverse claim, in violation of the confidence reposed, she can not invoke the benefit of section 2680, which, “in actions seeking relief on the ground of fraud,” allows an additional year ather the discovery of the facts constituting the fraud, where the statute has created a bar, within which to
The original complainant, by her bill, does not seek to test the validity of the tax sales of her property on account of any defect or vitiating irregularity', nor, indeed, for any reason. By her failure to assail them, she admits their validity, and the bill proceeds entirely on that theory, although it sets up that Jones, by his failure to procure a deed and sue for the possession for eight years, had become barred of his right to recover under the sale made for the State and county taxes ; but the equity of the bill by no means rests upon this averment. It is of no importance, in a case of this character, whether the tax sales were good- or bad, and it is but an incident that the outstanding charge existed by virtue of tax sales. The result would not have been different if the incumbrance had arisen from some other cause. Section 606 lias no application to the case ; and as it is not argued that any other statute had operated a bar, it is unnecessary to consider whether this is an action seeking relief on the ground of fraud, within section 2630. — Scott v. Brown, (Ala.) 17 So. Rep. 731. Tlio suit was brought within ten years from the purchase of the tax titles, and ■ within a much shorter time after the repudiation of the trust relation. It was not barred. — Beadle v. Seat, 102 Ala. 532; 15 So. Rep. 243.
The next inquiry relates to the terms we should impose, as a condition to granting relief. The familiar maxim, that “he who seeks equity must do equitydoes not compel a complainant to make restitution where the
Jones having made a conveyance of the property, the instrument will operate as a transfer to his grantees of the claim, for which the property is made security, and these grantees, defendants herein, are entitled to be reimbursed the amount expended by him in the purchase of the tax titles, with interest; and they must account for the rent that was or might have been received; or if the property has been occupied by them, a reasonable occupation rent, after Mrs. Gilmer’s death. They will also be entitled to any amounts expended after that time, for taxes and necessary repairs with interest, six months rests to be made in stating the account. — Adams v. Sayre, 76 Ala. 509; Dozier v. Mitchell, 65 Ala. 511
The decree of the chancellor must be reversed and a decree here rendered for the complainants in accordance with these principles. As it will be necessary to take an account, the cause will also be remanded for that purpose, and for the complete execution of our decree.
As no tender was made to the defendants before the
We leave the chancellor to adjudge whatever further costs may accrue by subsequent proceedings in the chancery court. The costs of the appeal will be taxed against the appellees.
Reversed, rendered and remanded.