Bank of Wetumpka v. Walkley

• Decision Date: 24 November 1910
• Parties: BANK OF WETUMPKA ET AL. v. WALKLEY.
• Court: Alabama Supreme Court

53 So. 830

169 Ala. 648

BANK OF WETUMPKA ET AL. v. WALKLEY.

Supreme Court of Alabama

November 24, 1910

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

Bill by Earle V. Walkley against D. W. Walkley and another. From a decree overruling a demurrer to the bill, defendants appeal. Affirmed.

The bill, which was to set aside a sale of land made to complainant's guardian, alleges that H. H. Walkley died in 1892, leaving a last will and testament, by which he devised to the complainant certain lands, or an interest therein; that the will was duly probated, a copy of which is exhibited with the bill; that D. W. Walkley was the father of the complainant, and on the 14th day of December, 1892, on proper petition filed, was appointed guardian as to such land; that said D. W. Walkley in 1893 filed a petition as guardian to have the land sold for division between complainant, his ward, and another, who owned a one-seventh interest in the land; that an order of sale was granted, B S. Walkley appointed commissioner to make the sale, the sale was had, and the commissioner reported a sale of the land as per the decree, and that D. W. Walkley had become the purchaser thereof, at and for the sum of $750; that in April 1893, there was decree confirming said sale and ordering a deed made to the purchaser. The probate proceedings are made a part of the record by exhibit, as is a copy of the deed made under the probate proceedings. It is then averred that D. W. Walkley went into possession of the land, and so remained until a time hereafter stated. It is then alleged after stating the facts, that the purchase of said lands at the sale by D. W. Walkley was unauthorized, illegal, and subject to disaffirmance. It is then alleged that some time in 1905, and while in possession of the lands, Walkley and wife executed a mortgage to the Bank of Wetumpka in a sum certain, by which they conveyed the lands herein described. This mortgage is made an exhibit. It is then alleged that the mortgage was renewed in 1906, on January 4th, but that this mortgage was withheld from record until the 22d day of March 1907; that, having failed to pay the mortgage, the Bank of Wetumpka foreclosed it by sale at public outcry, and that the Bank of Wetumpka became the purchaser. It is further alleged that the mortgage executed in 1905 was never filed for record, and that orator knew nothing of the mortgage until about six or eight months before the filing of this bill. It is also alleged that not until after orator was 21 years old, and not until about 6 or 8 months before filing his bill, was orator informed or knew that D. W. Walkley had purchased the lands; and it is alleged that the price paid was not a fair and adequate price, but that the lands were reasonably worth from $1,000 to $1,250 at the time of the sale. It is further alleged that the Bank of Wetumpka had legal notice, at the time of the purchase of the lands from Walkley, that said Walkley was guardian of orator, and that said sale was subject to be disaffirmed by orator. It is then alleged that D. W. Walkley has become a bankrupt, and that George Stewart has been appointed trustee in bankruptcy, and is claiming some right or title to the land, and is seeking to subject same to the payment of Walkley's indebtedness. The demurrers raise the point that there is no equity in the bill; a complete and adequate remedy at law; that the bill shows that the Bank of Wetumpka was an innocent purchaser for value without notice; limitation of 10 years; staleness of demand; laches; failure to allege that the guardian was guilty of fraud in acquiring the land; failure to offer to do equity, etc.

Frank W. Lull and Goodwyn & McIntyre, for appellants.

L. E. Parsons and Phares Coleman, for appellee.

ANDERSON J.

It has been long and well settled by...