69 So. 607 | Ala. | 1915
To enable the appellant to have the relief sought, the allegation of the bill must be clear and specific that appellee did not rightfully acquire her interest in the lands sought to be divested out of him and invested in her. Nor should she have such relief without clear and convincing proof of facts showing that the deed was procured by fraud of her right of ownership therein. The evidence shows that in 1902 appellee was the administrator of the estate of appellant’s deceased mother, and that appellant, Margaret Wooddy, and her two sisters, Mrs. Sue Ware Matthews and Mrs. Bob
The contention of appellant is that appellee practiced a fraud on her, in said settlement, in procuring the deed in question to be made to him and wife, instead of to appellant and her sister, appellee’s wife. Complainant alleges in her bill that in this settlement “it was agreed that her brother, E. M. Ware, and her sister, Mrs. Bob Ware Rogers, and her husband, J. H. Rogers, would convey to appellant and appellee’s wife, Sue Ware Matthews, their one-half interest in the land in Shelby county, involved in this suit;” that appellee was a party to this agreement, and was selected by the parties in interest to have the proper conveyances drawn in accordance with the agreement; that the deeds when presented
This contention is denied by appellee, who insists that the deed executed in 1902 was in accordance with their agreement of settlement and distribution of the property ; that he and his wife purchased appellant’s interest in the property, giving his note for the balance of the purchase money. At the date of conveyance the land was worth about what appellee claims he agreed to pay, or the agreed price was not greatly disproportionate to its true value. At the time the. deeds were executed, E. M. Ware had sold his undivided one-fourth interest in the property to appellee — a fact well knowm to each party. He did not sign the deed in question, and was not even present. The allegation in the sixth paragraph of the bill that he agreed to sign the deed with Mr. and Mrs.' Rogers and appellant seems inconsistent with the fact that he did not then own an interest in the properties.
In Curry’s Case the relation was that of landlord and superintendent, living in the same house, the latter having acted as her general agent, and the parties bore to each other an intimate relationship. before and at the time of the questioned conveyance.
Though the evidence shows that appellee was the administrator of one of the estates being dealt with, the whole evidence being read and considered by the full court, no dominance by appellee is shown, and under all the facts it is not presumable.
This agreement of settlement involved not alone the interest of appellant. It was a purchase by appellee and wife, from the other heirs, of their interest of the Shelby county lands in question, and was a sale by them to Mr. and Mrs. Rogers of their interest in the house and lot in Goodwater. Mrs. Matthews owned a fourth interest by inheritance; her husband, by purchase from E. M. Ware, a fourth interest; and by deed in question Miss Margaret Ware and Mrs. Bob Ware Rogers and husband conveyed to appellee and wife the other half interest. Thus the appellee and wife acquired the Shelby county lands, and Mrs. Rogers the house and lot in Goodwater, and Miss; Ware sold her interest in both tracts of land to said several grantees. No other reasonable explanation can be made of the contract of Mr. and Mrs. Rogers and Miss Ware in signing the deed in question, and of Mr. Matthews and wife in executing- a deed to the Goodwater property. No insistence is made against or by Mrs. Rogers that a fraud was practiced in procuring the conveyance ; nor is Mrs. Rogers disavowing her sole ownership of the house and lot. When Mr. and Mrs. Rogers received a separate deed to the lot in Goodwater, they knew that Mr. and Mrs. Matthews and appellant, each of whom executed the deed, were not named as grantees therein. It
The properties conveyed in the respective deeds were valued, as shown by the testimony of J. H. Rogers and K. N. Matthews, the Shelby county lands at $1,200, and the Goodwater lot at $800. When Mr. and Mrs. Matthews conveyed to Mrs. Rogers their half interest in the Goodwater lot, worth $400, to Matthews, how were they paid therefor, if not by an additional interest in the Shelby county lands? If Miss Margaret Ware was to have a half interest in the Shelby county land, how did she pay Mrs. Matthews for the additional interest she was acquiring from her by the purchase? If by the agreement a half interest was to pass to appellant, her distributive share of the estate being only $718.47, and she had received from Mr. Matthews, as administrator, about $200 in her education, she has not shown how she paid Mr. and Mrs. 'Matthews the purchase price for an interest in the lands that would equalize with them her holding. The $90 note claimed to have been given by appellant to appellee would not have done so.
The report of final settlement of the Ware estate, in the probate court of Coosa county, of date January 15, 1900, shoAVS that appellee charged himself, as administator, with the sale of the lands, and asked credits for certain vouchers submitted as having been paid to each heir, including appellant; the distributive share of each heir being shown as $718.47. The decree of the court recites a consent, signed by Mamie Ware Matthews, E. M. (Tip) Ware, Margaret Ware, the appellant, and Mr. and Mrs. Rogers, in which each acknowledged the receipt in full of his or her distributive share. This tends to shoAV that at the time the parties treated the land as money, and that the distributive share was agreed to be $718.47.
Appellant and hér sister contend that, to equalize the interests, appellant OAVed Matthews $90, and that for this a note was given. If this sum be deducted from the distributive share of $718.47, we have a balance of $628.47. That the sum paid her by appellee, $449.35, was about 8 per centum on $628.47 for about nine years, is persuasive that Margaret Ware treated her interest in the estate as in money, and at about that sum, and that appellee was paying her yearly interest, and not half the rents. It is the reasonable view of this long past transaction, that Mrs. Rogers was acquiring by purchase the
The appellant alleges in her bill that, when she' discovered the fraud in the procurement of the conveyance, she immediately filed her bill asserting her right. Appellee states that he exhibited to her the deed at his home in Huntsville, and explained that his child by Sue Ware his deceased wife, was thus provided for. Appellant admits that she was at appellee’s home in Huntsville, but denies seeing the deed. The fact remains, however, that appellant’s bill was not filed until ten years after the conveyance, after the death of Mrs. Matthews, her sister, and after the enhancement in value of the real estate, possibly, by the condemnation of the water power company for flood rights. When the' deed was executed the appellant was unmarried, the lands were unimproved, and the rental Avas small. It was not unreasonable that her thén' condition should dictate that she receive in the settlement money rather than unimproved land. She admits in her testimony that this question Avas discussed between them at the time of the settlement.
Upon an examination of the record by the whole court (aside from the question of laches) [Rives v. Morris, 108 Ala. 527, 18 South. 743; Hauser v. Foley Co., 190 Ala. 437, 67 South. 252; 5 Pom. Eq. Jur. § 21]), we are of the opinion that the chancellor reached the right conclusion under the pleading and the proof.
This court does not commit itself on the right, under the general payer of this bill, to enforce a vendor’s lien in this suit, as suggested by counsel in argument. — Sims’ Ch. Pr. §§ 288, 289.
The decree of the chancellor is sustained, and the case is affirmed.
Affirmed.