Barnes v. Powell

• Decision Date: 16 June 1941
• Docket Number: 4 Div. 180.
• Citation: 3 So.2d 80,241 Ala. 409
• Parties: BARNES v. POWELL.
• Court: Alabama Supreme Court

3 So.2d 80

241 Ala. 409

BARNES v. POWELL.

4 Div. 180.

Supreme Court of Alabama

June 16, 1941

Appeal from Circuit Court, Covington County; Robt. S. Reid Judge.

Mizell & Pearson, of Andalusia, for appellant.

Powell & Fuller, of Andalusia, for appellee.

BROWN Justice.

This is an appeal from an interlocutory decree sustaining the defendant's demurrer to the bill filed by the appellant against the defendant seeking to charge him as a trustee ex maleficio in procuring, through fraud, title to property belonging to complainant, and to require him to account for the value of timber cut and sold from the property, money collected on insurance policies covering buildings destroyed by fire, and rents or profits arising from the use and occupation of the lands by the defendant.

In another aspect the bill seeks to have cancelled two deeds which the bill alleges were not executed by the defendant but forged, and in the alternative, the bill seeks, if complainant is mistaken in the contention that he did not execute said deeds, that they be declared to be mortgages, and the bill offers to do equity.

The defendant's demurrer addressed "to the bill of complaint, as a whole and to each paragraph thereof", assigns eleven grounds, including the general demurrer for want of equity, was sustained by the decree, to the original bill and the bill as amended.

The demurrer in the form indicated is addressed to the bill as a whole, and if it has equity in either of its aspects, and is not subject to the specific grounds stated in the demurrer, it was due to be overruled, and the decree sustaining it is erroneous. Lea v. Iron Belt Mercantile Co., 119 Ala. 271, 24 So. 28; Oden v. King et al., 216 Ala. 504, 113 So. 609, 54 A.L.R. 1413; Kelly v. Carmichael, 217 Ala. 534, 117 So. 67.

The case made by the bill is that the complainant and the defendant are blood relatives--first cousins--that the complainant is of advanced age and practically blind; that the defendant--a younger man--was left an orphan, and complainant helped rear him and complainant had implicit confidence and trust in the defendant at the time of the occurrences, and relied on defendant's statements as to his dealings with complainant's property. Complainant had given a mortgage on one part of his land to one Adelia Miller to secure an indebtedness of $470, and said mortgage was of record; and had mortgaged other lands to the American Bank & Trust Company of Opp, to procure money to pay an indebtedness to Leila Davis.

Adelia Miller foreclosed her mortgage, and the property was purchased by her husband, Griffin Miller. The bill then avers: "That on, to-wit, December 14, 1922, Griffin Miller and wife, Adelia Miller, conveyed said property to Mrs. Iola Miller, but that such conveyance was not recorded until March 21, 1926, the same being recorded in Deed Book 62 at page 599 at the Probate Office of Covington County, Alabama, describing the aforesaid W 1/2 of NW 1/4, Section 21, Township 2, Range 17; and complainant avers that he tendered the full amount of the mortgage debt and charges secured to Mrs. Adelia Miller in an attempt to redeem the property sold at the aforesaid mortgage foreclosure sale, but that this tender was refused; that subsequent to the time of making such tender the respondent, J.W. Powell, informed your complainant that he had made arrangements to satisfy and had satisfied or taken up the aforesaid Adelia Miller morgage debt for complainant, and had taken a deed for the land in the name of your complainant, and had put it in The First National Bank of Opp, Alabama, with other papers belonging to complainant."

The bill further avers:

"That at this time he [complainant] was a person of advanced age and of practically no vision or eyesight, and that J.W Powell was a person of younger years, was a first cousin of complainant and a person whom your complainant had helped rear when the said respondent was younger and an orphan child, and that he had full and implicit confidence and trust in the respondent at that time, and therefore relied upon the respondent's statement as to what he had done with reference to the taking up of the aforesaid mortgage to Adelia Miller, or redeeming the property theretofore mortgaged to her, although at no time had your complainant ever authorized respondent, expressly or impliedly, to take such action. Complainant is not informed and has no knowledge of exactly how such transaction was completed by the respondent, but has since learned that the respondent procured a deed from Mrs. Iola Igo and husband, the said Iola Igo being formerly Mrs. Iola Miller, on or about March 13, 1926, in his own name. Complainant further avers that without his knowledge, consent, or authority, the respondent paid to the American Bank & Trust Company, the mortgage it held on the lands of complainant; namely: All land south of the branch in the S 1/2 of the SW 1/4 of Section 16; one acre in the NE corner of Section 20, and the NW corner of Section 21, all in Township 2, Range 17, Covington County, Alabama; that respondent thereupon informed complainant that he had paid up the debt to the said American Bank & Trust Company, and that he would take over the place, manage it, and work it out of debt, and thereafter return it to the complainant. The complainant alleges that he thereupon agreed for the respondent to take over the possession and management of the aforesaid lands for the purpose of recovering for himself the money he had allegedly advanced for the benefit of and in the name of complainant in payment of the aforesaid mortgage debt to Adelia Miller, later acquired by Iola Miller Igo, and the mortgage debt to the American Bank & Trust Company; that this occurred sometime during the year 1927, the exact date being...