Alexander v. Livingston

• Decision Date: 16 June 1921
• Docket Number: 3 Div. 511
• Citation: 89 So. 520,206 Ala. 186
• Parties: ALEXANDER et al. v. LIVINGSTON.
• Court: Alabama Supreme Court

89 So. 520

206 Ala. 186

ALEXANDER et al. v. LIVINGSTON.

3 Div. 511

Supreme Court of Alabama

June 16, 1921

Appeal from Circuit Court, Autauga County; B.K. McMurray, Judge.

Bill by Mary Livingston against John A. Alexander, as administrator and others, to declare certain deeds null and void, to sell land for division, and to fix the lien of a judgment and a mortgage upon the proper interest. From a decree granting the relief, respondents appeal. Reversed and remanded.

W.P McGaugh, of Montgomery, and Balard & Jones, of Prattville for appellants.

W.A. Gunter, of Montgomery, for appellee.

MILLER J.

This is a bill in equity to have two deeds declared null and void because the grantor was at the time a non compos mentis, to then have the land conveyed by them sold for division between the owners because it cannot be equitably divided, and to have mortgages and recorded judgments on the land declared liens on the interest only of the mortgagor and judgment debtor.

Mrs. Ella S. Livingston owned a lot in the town of Prattville, Ala., and an undivided one-third interest in 400 acres of land in Autauga county, Ala. Her son George S. Livingston owned the other two-thirds interest in the 400-acre plantation. The bill describes accurately the lot and the 400 acres of land.

On July 8, 1908, Ella S. Livingston for a recited cash consideration of $800 conveyed said lot to George Livingston, and on July 7, 1908, she conveyed said 400 acres to George Livingston for a recited cash consideration of $1,200. Each deed was properly attested and duly acknowledged. Both were recorded July 8, 1908. Mrs. Ella S. Livingston died intestate in August, 1908, about 30 days after the execution of the deeds. She left surviving her three children, viz. Mary Livingston, said George Livingston, and John Livingston. George S. Livingston died intestate February 28, 1919, leaving a widow and two minor children.

This bill is filed by Mary E. Livingston as the sole party complainant. The widow and two children and the administrator of the estate of George S. Livingston are parties defendant.

The bill avers that George S. Livingston, after securing said deeds from Mrs. Ella S. Livingston, mortgaged the 400 acres of land and other lands to F.A. Flowers, and that this mortgage and debt secured by it are now owned by Allen Northington. Allen Northington is made party defendant. The bill avers that, after securing said deeds from Mrs. Ella S. Livingston, George S. Livingston mortgaged the lot to James D. Deramus; that James Deramus is now dead, died intestate, and his heirs are made parties defendant to this cause. The bill avers that said heirs have sold said lot under the power of sale in the mortgage, and that it was purchased at the sale by W.A. Hunt; that W.A. Hunt is now in possession of the lot, claiming it under purchase at the mortgage sale. The bill makes W.A. Hunt a party defendant. We find nothing in the record showing he has been served with notice. We find no decree pro confesso against him and no demurrer or answer on file by him. He is a necessary party under the allegations of the bill. There is nothing in the record giving the court jurisdiction of him. Any degree rendered by the court as to the lot claimed by and in possession of him would be null and void as to his interest therein. The agreed statement of facts, signed by only three of the parties, shows that this lot has been redeemed by P.E. Alexander from W.A. Hunt. The allegations of the bill and the proof should correspond.

The court below declared the two deeds executed by Mrs. Ella S. Livingston to George S. Livingston null and void, because she was of unsound mind at the time they were executed. The evidence is almost without dispute that she was a very intelligent woman until a few years before her death, when her memory became impaired, and her mind became unsound, and it appears from the evidence almost without conflict--but we express no opinion thereon as the case has to be reversed--that she was mentally incapacitated to execute voluntarily and intelligently the deeds at the time they were signed. She was residing with and under the care of her son, George S. Livingston, at the time, and her mental condition was probably known to him--but as to this we express no opinion. If she was insane and he knew it at the time the deeds were executed, then the deeds were null and void. Sections 3347 and 3348, Code 1907; Mitchell v. Baldwin, 154 Ala. 346, 45 So. 715; Galloway v. Hendon, 131 Ala. 280, 31 So. 603.

If the deeds were void, then John Livingston, her son, at her death inherited an undivided one-third interest in the lot, and an undivided one-third of one-third interest in the 400 acres. He was a necessary party. He is not a party. The original bill averred that John Livingston sold his interest in said property to George Livingston. The bill of complaint was amended by striking out all allegations contradictory or at variance with this amendment, and adds, among other averments, the following:

"And that the subsequent mortgages and deeds made by George S. Livingston to said lands and said lot as alleged in her original bill are void as to the interest of plaintiff and of her brother John in said lands and lot derived by them as heirs of said Ella S. Livingston, which is as to said lands one-third of one-third interest to each of them, and as to said lot one-third to each of them, there being three heirs to said Ella S. Livingston, viz. oratrix, the said John, her brother, and the said George S. Livingston, deceased."

The amended bill also alleges that one-third of one-third interest in said 400 acres belonged to oratrix and one-third of one-third of said 400 acres belonged to John Livingston and, "also one entire third was subject to John Livingston's vendor's lien for $1,000 and interest." Under the allegations of the bill as amended, he owns an interest in the lot and 400 acres of land, if the deeds made by his mother are declared null and void. If the allegations are true no decree rendered will be binding on him or his interest or his lien, if any, in the property. True, some of the testimony indicates that he has or claims no interest in the property, but there is some conflict in the evidence on this.

On February 17, 1913, George S. Livingston executed a mortgage to Autauga Banking & Trust Company on this property to secured an alleged...