101 Ala. 250 | Ala. | 1893
Lead Opinion
The parties to this suit claim the land in dispute under different conveyances from Mrs. Mary Whisenant. In October, 1877, she conveyed the land by deed to the appellant, who is her son, In October, 1881, she executed another conveyance of the same land to Mrs. Gordon, the appellee. It is not alleged or claimed that the appellant ever reconveyed the legal title to his mother. The claim is that by a parol agreement between them, made prior to the execution of the conveyance to Mrs. Gordon, the deed to the appellant was can-celled, and by him surrendered to his mother, who was restored to the possession of the property. Mrs. Gordon acquired possession of the land under the deed to her, and remained in possession for several years, and until after the death of Mrs. Whisenant. The appellant having recovered a judgment against the .appellee in a statutory action of ejectment for the land, the bill in this case was filed by the appellee to restrain the execution of the judgment in favor of the appellant, and to compel him to convey the legal title to the appellee.
The legal title which was vested in the appellant by
The evidence above referred to is what must be relied on to support the conclusion that when the appellant handed his deed back to his mother he abandoned his claim to the land, and that it was understood between them that .she should be the owner of the land from that time. But there are several considerations in the way of accepting this conclusion with any confidence in its correctness. In the first place, even after rejecting a mass of incompetent evidence on both sides, we are still confronted with irreconcilable conflicts at every material point throughout the testimony. Furthermore, it appears that the appellant did not give up the land when
The appellee does not occupy the position of a bona fide purchaser without notice of the prior conveyance to the appellant, for, though that conveyance had not been recorded, yet it is plain from the evidence that the appellee was informed of its existence when the deed of .later date was made to her. There is no evidence to show that the appellee in making her purchase was influenced by any representation or admission made by the appellant, or that she acted on any assurance from him that he no longer claimed the property. There is
It is unnecessary to review the ruling made on the demurrer to the bill. Any want of proper allegations in the bill might be cured by amendment. Conceding the sufficiency of the bill, yet the evidence adduced does not warrant the granting of the relief prayed upon either of the grounds, that the defendant had made a valid agreement to reconvey the land in dispute to the complainant’s grantor, or that the defendant is estopped from asserting against the complainant the legal title vested in him by the prior conveyance. For the reason that the complainant’s claim is not supported by sufficient evidence, the decree of the chancery court is reversed, and a decree will be here rendered dismissing the bill.
Rehearing
On Rehearing.
Upon a further examination of the evidence in this cause we have reached the conclusion that it was the intention of George E. Whisenant and his mother, Mary Whisenant, and their contract, cognizable in equity, though inoperative at law, to rescind the sale by the latter to the former of the land in controversy, and to revest the title in Mary Whisenant. We are now of the opinion that this purpose and parol contract are clearly shown by the redeliverv of the deed to Mrs. Whisenant; her contemporaneous abandonment of the house of her son George, where, by the terms of the deed, he was to support her for life in consideration .pf her conveyance of the land to him ; his ceasing from that time to yield this continuing consideration; his failure, certainly after the current year, during-her life, and for more than a year after her death, — in all six or seven years, — to assert any claim to the land ; the constant assertion during this- time of ownership by Mrs. Whisenant and her vendee, the complainant; and his repeated declarations, which we think the evidence satisfactorily establishes, that he he was tired of his mother, that “she was bothersome,” that he “would not be bothered with her for two such places,” that he “had