191 So. 628 | Ala. | 1939
The proceedings from which the appeal is prosecuted had for its purpose the partition of lands by the alleged joint tenants.
The secondary question presented is the ascertainment of the amount of unpaid claims due by the estate of Mrs. E. C. Watt, deceased, to provide for payment of the same by making it a lien on the property of the respective owners of the land who were forced to discharge such property of said respective liens.
The death of Mrs. Watt is alleged in the initial pleading as of August 6, 1928. It is further asserted that she was the owner of the lands in question, left surviving two children — Nellie Watt, appellant; and Lillie L. Appleton, the mother of appellee Zera Appleton Lee. The death of Mrs. Appleton is alleged to have occurred on August 5, 1930, leaving surviving the appellee as her sole heir at law. Attached to the bill as an exhibit is a plat of the farm lands alleged to be a fair and equal division thereof. This the court adopted in the decree, the recitation being contained therein of a personal inspection of the premises by the court rendering the decree. The prayer of the bill is that the lands be divided according to such plat or map, that the debts owing by the estate of Mrs. Emma C. Watt be adjusted, and that the respective owners of the land be required to pay a due portion of such debts as by the decree may be made a charge against the respective allotments.
The bill was answered by Miss Watt, the appellant, asserting affirmative relief by way of cross bill, and appellee answered the amended pleading.
The cross bill alleges, among other things, that the father of the respective parties, John S. Watt, died June 4, 1903; that about the year 1905 his widow, mother of the original parties, advanced to her daughter Lily the full amount of her interest in and to the estate of Mrs. Watt; that Zera Appleton Lee, representing such interest as the mother had, does not own and is not entitled to an equal division of the assets of the estate of Emma C. Watt for the reasons specifically stated in the pleading, and that the lands described in the pleading were the separate estate of Mrs. E. C. Watt and not that of her husband at the time of the death of her said husband.
It is further alleged that Lily Appleton, desiring to anticipate her distributive share or interest in her mother's estate, had the mother to make settlement with her in full of such interest; that arriving at such interest or settlement, the *455 lands were surveyed and appraised at $10,000 by disinterested persons selected by the respective parties; that Mrs. Appleton, in anticipation of her distributive interest in the mother's estate and lands, accepted one-third or more of the appraised value of such lands, which sum of money was paid by her mother and received by the said Lily Appleton in payment and satisfaction of her interest in all of the said mother's property, and that Mrs. Appleton procured a home in Gadsden therewith.
The respective issues were presented in the trial court by oral testimony given before the register acting as commissioner; was transcribed and used by the court in rendition of the decree. Under such circumstances this Court, without indulgence as to the correctness of the decree, will consider the entire record; and if the decree is erroneous, render such decree as the lower court should have rendered or reverse the cause with direction that the lower court render a proper decree in the premises. Wood v. Foster,
Of the law that obtains, it should be observed that, in any suit for partition of lands or other properties by alleged joint owners, the defense that complainant's ancestor was paid in full his or her interest in the estate having been pleaded, was a defense resting on estoppel and is properly presented by answer and cross bill. Smith v. Hood et al.,
The doctrine of equitable estoppel by matter in pais, though the title to land may rest in parol, and unavailing in law, may be given full effect and operation in a court of equity. Hendricks v. Kelly,
In Wefel v. Stillman,
It has been recently observed of estoppels by judgments and proceedings in trial courts, in Bromberg v. First Nat. Bank of Mobile,
" 'It is a familiar statement of the law of estoppel that "a party who has, with knowledge of the facts, assumed a particular position in judicial proceedings, is estopped to assume a position inconsistent therewith, to the prejudice of the adverse party." ' * * *
" 'A defendant who, for the purpose of maintaining a defense, has deliberately represented a thing in one aspect, cannot be permitted to contradict his own representation by giving the same thing another aspect,' at law or in equity. * * *
" ' "A party who obtains or defeats a judgment, by pleading or representing a thing or judgment in one aspect, is estopped from giving it another in a suit founded upon the same subject-matter." ' * * *
" 'When a party has defeated a judicial proceeding by alleging by pleading a particular state of facts, he can not be heard subsequently to deny or disprove these facts in defense of another proceeding.' * * *"
See also Scharfenburg v. Town of New Decatur,
In Boone v. Byrd et al.,
Under the instant pleading and evidence, it will be further noted that in Clark v. Whitfield,
The rule of evidence is well recognized that the statements of one in possession of land, declaring title and ownership thereof, are competent and relevant testimony of such declared facts. Such is the rule to be applied as to the claims and declarations of Mrs. Emma C. Watt done and made while in possession of the land from the date of the death of her husband in 1904 until her death in August, 1928. Smith v. Bachus et al.,
It may be further noted here that since Biblical times benefits from ancestors to children have been recognized and enforced. In Betts v. Ward,
In Yarborough's Adm'r v. Avant,
It is further declared in this jurisdiction that where gifts of substantial value are shown to have been made by the ancestor to a child, it is prima facie presumed that it was intended as an advancement, and not as a gift; and the burden of proof is on the person receiving the same to show that it was not intended as an advancement. First Nat. Bank of Oneonta v. Robertson,
Under the main insistence presented by the pleadings, the questions of fact are whether or not the ancestor in dealing with appellee's mother made gifts or advancements to her; and if appellee's mother's home in Gadsden was established and procured with her distributive share or moiety in the estate. In these respects the burden of proof was upon appellee to show a gift rather than an advancement. Thus we are brought to a consideration of the evidence under this issue.
The evidence is voluminous and a recitation of same would serve no good purpose. The burden of proof was upon the appellee as to the character of moneys Mrs. Appleton received from her mother, Mrs. Watt. These transactions between the mother and appellee's immediate ancestor did not rest entirely in parol in the respects we now indicate. For instance, the memorandum *457 exhibited which reads "pay to Lillie Appleton $800.00 for part-payment of her interest," and checks in the handwriting of Mrs. Watt, the common ancestor, which support the family agreement and settlement by Mrs. Watt to Mrs. Appleton. That is to say, when the whole record is considered, Mrs. Appleton by her conduct and actions in the settlement with her mother, Mrs. Watt, is bound by the estoppel raised against her in favor of Nellie Watt, the sister of Mrs. Appleton, mother of appellee — appellee being the only child of Mrs. Appleton.
As to whether the foregoing will support or reverse the judgment rendered by the trial court is dependent on three other questions now to be considered. One. Whether or not the former litigation concludes the question of fact being dealt with. Counsel for appellee cite the case of Hancock et al. v. Watt,
When the acts of appellant in the Probate Court as to these lands and other properties of the mother's estate are considered in her individual and administrative capacity, she is brought within the influence of decisions collected in the case of Bromberg v. First National Bank, supra; First National Bank of Mobile v. Burch,
The foregoing is sufficient to support the decree of the trial court. Moreover, the appellant delayed the assertion of her claim to all the lands until death had closed the mouth of Mrs. Appleton, the immediate ancestor of Mrs. Lee. The rule of laches applies in support of the decree rendered. Wooddy v. Matthews,
With this view and judgment, there was no error in the holding that solicitors' fees for complainant should be allowed against this property which was common property. Dent v. Foy,
The Court had the inherent right to view the premises as was done in the exercise of a sound discretion, such court rendering the decree. Faught v. Leith,
No prejudicial error is shown to have intervened by this action of the trial court in viewing the premises in the absence of both parties and attorneys. 2 Wigmore on Evidence, Section 1163 et seq.; 22 C.J. p. 766, § 863; 64 C.J. p. 1202, § 1007.
The judgment of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and BROWN, JJ., concur. *458