Ammons v. Ammons
| Decision Date | 23 June 1949 |
| Docket Number | 7 Div. 15. |
| Citation | 42 So.2d 776,253 Ala. 82 |
| Parties | AMMONS et al. v. AMMONS et al. |
| Court | Alabama Supreme Court |
Rehearing Granted Nov. 17, 1949.
Charles Douglass, Anniston, for appellants.
Young & Young, Anniston, for appellees.
This is an appeal from a decree of the equity court sustaining the demurrers of Ed Ammons to the bill of complaint, as last amended, filed by Ida Ammons and Jessie Ammons (appellants) against Mary B. Ammons, Fannie Ammons, Ed Ammons, Bill Ammons and Mary Bradford (appellees). The purpose of the bill is to sell for division certain lands lying in Calhoun County Alabama, owned by the complainants and respondents as joint owners or tenants in common on the ground that the lands cannot be equitably divided.
The respondent Ed Ammons filed an answer, as amended, to the original bill, denying that the complainants owned any right title or interest in the land and alleging in substance that he had purchased the interest of all the parties to the suit under a deed dated January 17, 1929, and a deed dated February 5, 1930, in which he had purchased the interest of one Cleveland Turner. He further alleges that he went into possession of the lands in the deeds and had held and owned the land for more than 20 years and has assessed the property for taxes and has paid taxes thereon for such period of time. He prayed that his answer be taken as a crossbill against the other parties to the suit. Copies of the foregoing described instruments were attached to his answer as amended and made a part thereof.
The complainants thereupon amended their original bill so as to show the source of their alleged title and alleging the parties to the suit to be the present devises or descendants or heirs of Harrison Campbell, deceased, otherwise known as Harrison Ammons. There are other allegations in the bill as amended with reference to the family relationships which do not appear to be necessary to set out for the purposes of this appeal.
The bill of complaint as amended attacks the deed executed to Ed Ammons which we have referred to in stating the allegations of his answer. Copy of the deed is attached to the bill as amended and made a part thereof. The deed is attacked from two standpoints. It is alleged that Ida Ammons is the widow of John Ammons, deceased, who died April 22, 1945, and Jessie Ammons is the only child of John and Ida Ammons. It is alleged that the signature to the deed to Ed Ammons from John and Ida Ammons was procured by fraud and deceit in that no consideration was asked for by them, no consideration was paid to them, that Ed Ammons came to their home with the deed already prepared and procured their signatures, representing in substance that he wanted them to sign the deed in confirmation of his authority as executor of the will of Harrison Campbell, deceased, and to enable him to make a quick sale of the property and that upon the sale being made the proceeds thereof would be distributed among the several devises of Harrison Campbell and their heirs as their interest might appear, including John and Ida Ammons.
It is further alleged that they had confidence in him, that he was the brother of John Ammons, that they believed the representations to be true and in reliance upon the representations they signed the deed and delivered it to Ed Ammons. It is alleged that the representations made for the purpose of acquiring their lands were false and made for the purpose of deceiving John and Ida Ammons and did deceive and induce them to convey their interest in this property. It is alleged that they are not lawyers and are of limited education and believing the representations made to be true did not engage an attorney to advise with them before execution of the instrument and that if they had known the real plans of Ed Ammons they would not have attached their signatures to the deed.
It is further alleged that Ed Ammons did not make a quick sale of the property and has not made a sale or sales of any part of it, that several times John and Ida Ammons called upon and urged him to proceed with a sale of the property, 'he answering in substance that he was busy with his work, did not have time to look after the sale and urged them, John and Ida Ammons, to seek a purchaser or purchasers, that they contacted several prospects, reported same to Ed Ammons, advising the sale and in each instance Ed Ammons refused, saying in substance that the price or prices offered were not sufficient.'
They further allege that upon acquiring the deed Ed Ammons failed to take active steps to bring about a sale lulling them into inactivity against him through representations that the property would be sold and divided in accordance with the agreement and never in any way questioning their title. It is further alleged that under pressure from Ida Ammons, Ed Ammons on towit June 7, 1941, wrote a letter to Ida Ammons saying in part, 'I will do my best at the earliest possible time to see that you get your part in cash,' but refusing a proposed offer and suggesting that she come to see him as he could not come to see her. It is further alleged that Ed Ammons never disputed the title of complainants to an interest in the property and the first that complainants knew of his claim to ownership was after they filed the present suit on April 10, 1948.
In a subsequent paragraph a different basis is stated upon which the aforesaid deed is sought to be annulled, it being alleged that if the complainants are mistaken in their averment that the instrument should be annulled for fraud, then and only in the alternative, they aver 'that said instrument was executed by complainants as a deed of trust, solely for the purpose of empowering the said Ed Ammons to make a sale of said property and then pay the complainants their part of the proceeds and that he has breached this trust.'
I. It will be observed that the deed which Ed Ammons is alleged to have procured, was executed by John Ammons, one of the beneficiaries under the last will and testament of Harrison Ammons, deceased,...
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