Aniton v. Robinson

• Decision Date: 16 November 1961
• Docket Number: 6 Div. 634
• Citation: 134 So.2d 764,273 Ala. 76
• Parties: Georgia ANITON et al. v. Nellie ROBINSON et al.
• Court: Alabama Supreme Court

Page 764

134 So.2d 764

273 Ala. 76

Georgia ANITON et al. v. Nellie ROBINSON et al.

6 Div. 634.

Supreme Court of Alabama.

Nov. 16, 1961.

J. J. Cockrell, Birmingham, for appellants.

Johnson & Randall, Oneonta, for appellees.

LAWSON, Justice.

The original bill was filed by the appellees for the sale of land for division of proceeds among alleged tenants in common and for other relief, including the cancellation of certain conveyances as clouds on appellees' title.

After demurrer was overruled the appellants filed an answer which was made a cross bill. The appellees answered the cross bill. The answer-cross bill was amended. The original bill was then amended. The answer-cross bill was again amended. The appellees answered the cross bill as last amended. The appellants, the respondents-cross complainants, then filed 'Demurrer To Complaint As Last Amended,' which was overruled.

Following a hearing wherein the testimony was taken ore tenus, the trial court denied the relief sought in the cross bill and dismissed it. The prayer of the original bill that the subject lands be sold for division was granted and the lands ordered sold.

The respondents-cross complainants have appealed to this court.

The assignments of error which are sufficiently argued in appellants' brief to warrant consideration by this court assert that the trial court erred in the following respects: (1) in overruling demurrer to the original bill; (2) in overruling 'Demurrers to Complaint as Last Amended'; (3) in denying relief under the cross bill and dismissing it; and (4) in ordering the subject lands sold for division.

The demurrer to the original bill was addressed to the bill as a whole. The only grounds of that demurrer which are insisted upon in appellants' brief are those which take the point that the bill is without equity. So if any aspect of the bill asserts matter of equitable cognizance, the decree overruling the demurrer will be affirmed. Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; Cunningham v. Andress, 267 Ala. 407, 103 So.2d 722; Adams Supply Co. v. United States Fidelity & Guaranty Co., 265 Ala. 178, 90 So.2d 284; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751.

The appellants insist that the argued grounds of demurrer should have been sustained for the reason that the bill shows on its face that the complainants are mere reversioners with no right or interest in the present use and enjoyment of the property, or to the proceeds in case of sale, and, hence, cannot compel partition or sale against the respondents, some of whom hold a life estate in the subject lands, according to the appellants' construction of the bill.

If the bill be so construed, that is, as showing that complainants own only a reversionary interest in the lands in controversy, the outstanding life estate is an obstacle or impediment in the way of assertion by complainants of their legal rights. Hence, they have the right to maintain this bill to remove the clouds from their title in reversion, although out of possession. Fies v. Rosser, 162 Ala. 504, 50 So. 287; Screws v. Wall, 203 Ala. 178, 82 So. 428; Baggett Mercantile Co. v. Vickery, 213 Ala. 427, 105 So. 207.

We hold, therefore, that the trial court did not err in overruling the general demurrer to the bill as a whole.

The argued grounds of the so-called 'Demurrers to Complaint as Last Amended' were directed, not to the complaint as amended, but to appellees' answer to the cross bill. Demurrer will not lie to an answer to a bill in equity or to an answer to a cross bill. See Flowers v. Auto Mutual Indemnity Co., 236 Ala. 30, 180 So. 705.

We hold that reversible error is not made to appear in connection with the court's action in overruling the so-called 'Demurrers to Complaint as Last Amended.'

We come now to consider the appellants' insistence that the trial court erred in denying relief under the cross bill and in dismissing it.

The subject lands were owned by Henry Clifton Aniton, who died intestate in 1948. He was survived by his wife, Georgia; by one brother, Boston; by two sisters, Nellie Robinson and Dora Coruthers; by seven nieces and nephews, children of his deceased brothers, Rafus and Greely; and by a grandnephew and two grandnieces, children of a deceased son of the deceased brother Rafus.

No children were born to Georgia and Henry Clifton Aniton.

The original bill was filed by the surviving sisters, Nellie Robinson and Dora Coruthers. Among the respondents to the original bill are Georgia Aniton, the widow, and one Emogene Aniton Smith, who came to live with Henry Clifton and Georgia Aniton when she was seven or eight years of age.

In their answer-cross bill the respondents alleged in effect that Emogene Aniton Smith is the adopted daughter of Henry Clifton Aniton and inherited all of the suit property subject to the dower rights of the widow, Georgia Aniton. The answer-cross bill prayed that the court so decree. There is no claim that Georgia has any homestead rights in the suit property. The amended answer-cross bill contained the prayer for specific performance of a contract to adopt Emogene Aniton Smith as the child and heir of Henry Clifton Aniton.

The trial court in the decree here under review denied the relief sought in the cross bill as amended and dismissed it, after observing:

'It is the judgment of the Court the evidence is insufficient to establish a contract to adopt which can and will be enforced in a court of equity.

'The details of what happened over thirty years ago, when the girl Emogene left her dying mother and began to make her home with Henry Clifton Aniton and wife Georgia Aniton, are somewhat obscure. Henry Clifton Aniton, the decedent, made no steps during his lifetime to adopt Emogene, and Georgia Aniton, as Administratrix, administered the estate of her deceased husband on the basis that Emogence was not an heir, and as late as 1957 recognized the title of the complainants and his other natural heirs as she dealt with the land, while Emogene sat silent for ten years after the death of Henry Clifton Aniton before asserting any claim as an heir in his estate. These courses of conduct are inconsistent with the claims now asserted by Georgia Aniton and Emogene.'

Where, as here, the question was with respect to title to land and the statute of frauds was pleaded, this court has denied specific performance of an alleged oral contract concerning adoption. Marietta v. Faulkner, 220 Ala. 561, 126 So. 635, followed and applied in Olive v. Olive, 221 Ala. 697, 127 So. 915. See Benefield v. Faulkner, 248 Ala. 615, 29 So.2d 1; Luker v. Hyde, 253 Ala. 283, 45 So.2d 32; id., 260 Ala. 248, 69 So.2d 421. In Prince v. Prince, 194 Ala. 455, 69 So. 906, upon which counsel for appellants places so much emphasis, the statute of frauds was not pleaded.

In this case there was no written instrument introduced in evidence signed by the Anitons or either of them wherein it was agreed that Emogene was to come into their home and custody to be treated and cared for as if she were their own child, as was the situation in Benefield v. Faulkner, supra.

The appellants did introduce in evidence a letter written by Henry Clifton Aniton to Emogene in 1946 which shows that the writer was extremely fond of Emogene. The letter contained this postscript: 'When I am gone I [sic] you to have everything I got.'

This letter, written many years after Emogene had married and moved away, cannot be said to be sufficient to warrant a decree of specific performance as prayed for in the amended cross bill. The burden was upon appellants to prove the contract by clear and satisfactory evidence. Luker v. Hyde, 260 Ala. 248, 69 So.2d 421. In our opinion they have not met this burden.

We have repeatedly held that where testimony was heard orally by the trial court, its finding of fact is given the same weight as a jury verdict and will not be disturbed here unless palpably wrong. Wiginton v. Milford, 271 Ala. 271, 122 So.2d 769.

Aside from any presumption, we are impressed from a careful reading of this record that the insistence that Emogene is the adopted child of Henry Clifton Aniton is but an afterthought.

As we have shown, Henry Clifton Aniton died in 1948. His estate was administered in the Probate Court of Blount County. The widow, Georgia Aniton, was appointed administratrix. In her petition for letters of administration filed on November 15, 1948, Georgia Aniton alleged that the heirs and distributees of Henry Clifton Aniton were herself, his brother and two sisters, and five nieces and nephews, all of whom were named. The nieces and nephews named are the children of the deceased brother Rafus. No mention was made of the two children of the deceased brother Greely nor of the three children of the deceased son of Rafus. Emogene Aniton Smith was not mentioned as an heir or distributee.

The order approving the final settlement of the administratrix was made and filed on November 12, 1949. It contains the statement that Henry Clifton Aniton was survived by no children.

It was not until 1958 that either Georgia Aniton or Emogene Aniton Smith asserted that the latter was the adopted daughter of the deceased. This position was not taken until after the appellees refused to convey to Georgia Aniton their interest in their brother's lands.

We are clear to the conclusion that the trial court was eminently correct in refusing to enter a decree of specific performance as prayed for in the amended cross bill and in dismissing it.

The appellants next insist that the trial court erred in ordering the suit property sold for division for the reason that the appellees, the complainants below, own only a reversionary interest without right to the present use and enjoyment of the property or the proceeds thereof in case of sale.

The rule seems to be well established that one who has a mere reversionary interest and has no right or interest in the present use or enjoyment of the land,...