Barnett v. Pinkston, 4 Div. 69.
Decision Date | 05 October 1939 |
Docket Number | 4 Div. 69. |
Citation | 238 Ala. 327,191 So. 371 |
Parties | BARNETT ET AL. v. PINKSTON ET AL. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.
Bill to quiet title by Thomas M. Barnett and Joel H. Gulledge against unknown heirs of Mrs. Frank C. Pinkston, deceased, and intervention by Charlie L. Pinkston (since deceased), Charles M. Pinkston, and Thomas Barnett Pinkston, as cross-complainants, to have title vested in them. From a decree denying relief under original bill and awarding relief under the cross-bill, complainants appeal.
Affirmed in part and in part reversed and rendered.
Where property was left under a will to two individuals for life with remainders to their children, living at their deaths, a decree pro confesso for the plaintiff in a partition action covering a tract of property left by will, in which it was alleged that one individual died without leaving issue, was not res judicata on question of whether such individual left issue in subsequent action to quiet title to another tract covered by will.
The facts as stated in brief of appellants are as follows:
The bill in this case was filed for the purpose of quieting title to certain lands located in Bullock County, Alabama, under the provisions of Section 9915 et seq. of the Code of Alabama of 1923. The bill is set out in full on pages 1 to 4 of the record. It is alleged that the lands involved were originally owned by Mrs. Posie E. Pinkston, who left a last will and testament which was duly admitted to probate and record in the Probate Court of Montgomery County, Alabama. Under the terms of this will Frank C. Pinkston was devised a one-half interest in said lands for and during his natural life, with the remainder over to his heirs, if any; that on September 16, 1904, said Pinkston conveyed his life interest therein to one Thos. M. Barnett by deed duly recorded in the Probate Office of Bullock County, Alabama, and that the said Frank C Pinkston died on July 15th, 1912, leaving surviving him a child, who, under the terms of said will, became the owner of an undivided one-half interest in the lands, and that said child died in September, 1912, leaving as its sole heir at law its mother, Mrs. Frank C. Pinkston; that the said Mrs Frank C. Pinkston died on September 4, 1912, after the child died, and that said lands were inherited by her heirs at law whose names, ages and places of residence are unknown. It is then alleged that the said Thos. M. Barnett continued in the possession of said lands paying the taxes, until the time of his death, and that the original complainants, Thos. M Barnett, one of the appellants here, and Mrs. Joel H Gulledge, were sole heirs at law, who continued in possession of said lands and paid the taxes, up to and including the time the bill was filed in this cause, a period of about twenty-four years after the death of the said Frank C. Pinkston, the life tenant. These unknown heirs of Mrs. Frank C. Pinkston were the original respondents in this cause.
Charlie L. Pinkston thereupon filed his petition of intervention along with a cross bill, but since it appears from the record that Charlie L. Pinkston had only a life interest in said lands and has died since the bill was filed and before the decree was rendered, we will not burden the Court with a statement of his contention. Practically the same matters are brought forward by his two sons, Chas. M. Pinkston and Thos. Barnett Pinkston, who later intervened and filed a cross bill. The really contested issues in the case are between the appellants and Chas. M. Pinkston and Thos. Barnett Pinkston, whose intervention and cross bill are set out on pages 23 and 38 of the record. It is alleged that these interveners likewise claim under the will of their grandmother, Mrs. Posie E. Pinkston, a copy of which will is set out as an exhibit on pages 31 and 32 of the record. The parties to this suit admit that this is a copy of the will which was duly admitted to probate. Mrs. Pinkston devised these lands to her two sons Frank C. and Charlie L. for and during their natural lives. If either should die, leaving issue, such issue would take an undivided one-half interest in said lands in fee simple, the possession of such issue continuing jointly with the survivor during the life of the latter, at which time the issue of the survivor would take the other undivided one-half interest in fee. If both died without issue, it was provided that the property would then go to Lillie M. Barnett, (who was the mother of the original complainants) and her heirs. It is further set up in the cross bill that on September 17, 1904, Mrs. Posie E. Pinkston's two sons, Charlie L. Pinkston and Frank C. Pinkston, by quit claim deed, conveyed to Thos. M. Barnett the undivided one-half interest in the property devised to Frank C. Pinkston, and which by remainder might pass to Charlie L. Pinkston. In 1905 the said Thos. M. Barnett and Charlie L. Pinkston made a partition of said property, Charlie L. Pinkston going into possession of what is called parcel No. 1 described on page 25 of the record, and Thos. M. Barnett receiving and going into possession of Parcel No. 2 described on page 26 of the record. For convenience, we refer to the deed made to the elder Thos. M. Barnett which is set out on page 68 of the record. By amendment to the cross bill shown on page 40 of the record, it is set up, among other things, that pending the litigation, Chas. L. Pinkston died leaving surviving him two sons, Chas. M. Pinkston and Thos. Barnett Pinkston. It thus appears that the contention of Thos. Barnett Pinkston and Chas. M. Pinkston is that since they claim Frank C. Pinkston died in 1912, without issue, and they are the surviving children of Charlie L. Pinkston, they took the fee simple title to the entire tract under the direct provisions of the will of Mrs. Posie E. Pinkston.
It is further contended by these parties and set up in the cross bill that the complainants are estopped to claim that there was a child born to Frank C. Pinkston as alleged in the original bill. The facts pleaded to support such a contention may be briefly stated as follows: In 1922 Charlie L. Pinkston and Chas. M. Pinkston, by next friend, filed a bill in the Circuit Court of Montgomery County, Alabama, seeking a sale of eighty acres of land specifically described therein. Record pages 33 and 34. It is set up in said bill that Charlie L. Pinkston was a life tenant in said lands and that his two sons, the present interveners, were contingent remaindermen under the will referred to. It is alleged therein that Frank C. Pinkston had died about eleven years prior thereto and leaving no children or descendants of children at the time of his death, and that Lillie M. Barnett was already dead, leaving two children, Thos. M. Barnett, Jr. and Sallie Gulledge, who were the original complainants in this cause. The bill prayed that Thos. M. Barnett, Jr., and Sallie Gulledge and Thos. B. Pinkston be made parties respondent to the bill, and by reason of certain conditions alleged therein, that the eighty acres of land described be sold for re-investment. Service was had on each of the parties and a Guardian ad litem was appointed to represent the minor respondent. Decrees pro confesso were taken against Thos. M. Barnett, Jr. and Sallie Gulledge. Record page 123. The court entered a decree granting the relief prayed for and ordering said lands sold for re-investment. Record pages 35 to 38. It is the theory of the appellees that since it was alleged in said bill and shown by evidence in that case that Frank C. Pinkston died without issue, this constitutes res judicata, and the appellants are now estopped to show anything to the contrary. Demurrers were filed to this aspect of the cross bill and overruled. Record pages 38 to 40. After the interveners had amended their cross bill, complainants again demurred to that feature which set up matters referred to as res judicata but although the case was submitted on the demurrer, on final submission, the Court made no final ruling thereon. See Note of testimony page 48. The answer to that phase of the cross bill alleged that the decree against them was based on a decree pro confesso. Rec. p. 46.
The testimony of Mrs. Mary L. Wonder and Dr. A. M. Walker was taken by filing interrogatories. Record pages 50 to 65. Mrs Wonder says that Frank C. Pinkston and his wife were...
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