Shelby v. Tardy

• Decision Date: 24 May 1888
• Citation: 84 Ala. 327,4 So. 276
• Parties: SHELBY ET AL. v. TARDY. TARDY v. SHELBY ET AL.
• Court: Alabama Supreme Court

4 So. 276

84 Ala. 327

SHELBY ET AL. v. TARDY.

TARDY v. SHELBY ET AL.

Supreme Court of Alabama

May 24, 1888

Appeal from chancery court, Madison county; THOMAS COBBS, Judge.

Bill by Annie S. Tardy against her husband, Clarence Tardy, and David D. Shelby, to have it declared that her husband holds in trust for her lands for which she claims to have paid, and to cancel as a cloud a contract of purchase of the land made by Shelby with the husband.

R W. Walker and R. E. Spragins, for appellant.

John D. Brandon, for appellee.

STONE C.J.

There is but one bill in this case, that of Annie S. Tardy against Shelby and against complainant's husband, Clarence Tardy. The object and prayer of the bill are to have it declared that Clarence, the husband, acquired and held title to the lands in controversy in trust for complainant, his wife, either as a resulting or constructive trust, and to have Shelby's claim of title vacated and removed as a cloud on the said Annie's title. She alone is actor in this suit, she alone prays relief, and, as the pleadings stand, only such relief can be granted as is necessary to secure to her the right she has shown herself entitled to. And even she can succeed only to the extent that her averments are supported by admissions in pleadings, or by proofs. Cullum v. Erwin, 4 Ala. 452; Gilman v. Railroad Co., 72 Ala. 566; Trimble v. Fariss, 78 Ala. 260. But it is not necessary to a valid decree that the relief shall be co-extensive with the claim set up in the bill. If the proof sustain only a part of the claim asserted, and the proven part fall within the general purview of the averments, and there be no repugnancy between the case made by the proof and the allegations and prayer for relief, the complainant may have relief if there be a prayer to which it can be referred. A general prayer for relief is sufficient in ordinary cases. Shipman v. Furniss, 69 Ala. 555; Munford v. Pearce, 70 Ala. 452; Machine Co. v. Zeigler, 58 Ala. 221. We concur with the chancellor in holding that the thousand dollars, first payment made on the land purchased from Mr. White, was made with money furnished by Mrs. Annie S. Tardy. The testimony satisfactorily establishes this. To this extent the chancellor granted her relief; and he expressed no ruling which, on the question of the land purchase, went beyond this single payment made with her money.

The most severely controverted question arising out of the testimony in this record is the inquiry, whose money was used in paying the second installment to Mr. White? The conveyance being made to the husband, and not to the wife, the presumption is raised that he, and not she, was the purchaser; and the presumption is strengthened by very many circumstances, not the least weighty of which is the undisputed fact that he paid the second installment with money furnished him by his mother. Many other corroborating facts are shown, but we will not enumerate them. This presumption, and the effect of this corroborating proof, are claimed to have been overturned by oral testimony that complainant had loaned her husband $1,800, and the payment by him of the second installment of the land purchase was only a partial repayment to her of the money thus borrowed. We have no wish to criticise this testimony in detail. Considering the close relationship between the parties and the witnesses, and the strong bias the circumstances tend to show they were laboring under, the testimony falls far below the required standard in such cases. Hubbard v. Allen, 59 Ala. 283; Hamilton v. Blackwell, 60 Ala. 545; Thames v. Rembert, 63 Ala. 563; Pyron v. Lemon, 67 Ala. 458; Gordon v. Tweedy, 71 Ala. 202; Lipscomb v. McClellan, 72 Ala. 151; Gordon- v. McIlwain, 82 Ala. 247, Danforth

v.

Herbert, 33 Ala. 497; Tilford,

v.

Torrey, 53 Ala. 120; Preston

v.

McMillan, 58 Ala. 84.

There is some testimony tending to show an intention on the part of Tardy to hold the title in trust for the benefit of his wife, the complainant. Such trust cannot be established by oral proof. Patton v. Beecher, 62 Ala. 579; Shelton v. Aultman & Taylor Co., 82 Ala. 315.

A deed was executed by Tardy, acknowledged and certified, and left in the custody of Richardson, to be delivered to Shelby when the latter paid the agreed purchase money, $5,000, in full. Richardson was Shelby's attorney to obtain the title from Tardy. Shelby made arrangements with Richardson, by which the latter undertook to pay Tardy the money when he called for it; and thereupon, at Shelby's request, Richardson delivered the deed to him, and it was recorded. It is contended for appellant that, inasmuch as Richardson was Shelby's attorney to obtain the title, a delivery to the former was in effect a delivery to the latter, and the deed became an executed conveyance by the delivery to Richardson. The general rule is that a delivery of a deed to a grantee or to his attorney, cannot be a delivery in escrow. Cherry v. Herring, 3 South. Rep. 667; Flagg v. Mann, 2 Sum. 486; Duncan v. Pope, 47 Ga. 445; Miller v. Fletcher, 21 Amer. Rep. 356; Tied. Real Prop. § 815. This is the rule when the deed is perfect on its face. See Nash v. Fugate, 32 Grat. 595. If a deed be not perfect on its face, but shows that some other party or parties are to unite in it before it becomes completely executed, a delivery even to the grantee is not conclusive evidence of delivery so as to cut off inquiry. The language of the Virginia court of appeals is as follows: "this doctrine [the doctrine that a deed cannot be delivered to the grantee as an escrow] is applicable only to the case of deeds which are, on their face, complete contracts, requiring nothing but delivery to make them perfect according to the intention of the parties; and it is not applicable to deeds which, on their face, import that something more is to be done, besides delivery, to make them complete and perfect contracts according to the intention of the parties." Hicks v. Goode, 12 Leigh, 479; Ward v. Churn, 18 Grat. 801; Wendlinger, v. Smith, 75 Va. 309. This doctrine is stated without dissent in 1 Devl. Deeds, § 315. We think it reasonable, and will adopt it. The deed in the present case expresses in its body that it is a conveyance by Clarence Tardy and Annie, his wife. At the foot is the signature, "C. M. TARDY. [Seal,]"-and immediately under it a blank with another "[Seal.]" Following that is a certificate of acknowledgment of execution by C. M. Tardy signed by a justice of the peace officially. Immediately under that is a second form of certificate, such as is required for a married woman who unites with her husband in conveying a homestead, filled up with the name "Annie Tardy, known to me to be the wife of...