Bevels v. Hall

• Decision Date: 01 March 1945
• Docket Number: 6 Div. 165.
• Citation: Bevels v. Hall, 246 Ala. 430, 21 So.2d 325 (Ala. 1945)
• Parties: BEVELS v. HALL.
• Writing for the Court: LIVINGSTON, Justice.
• Court: Alabama Supreme Court

21 So.2d 325

246 Ala. 430

BEVELS v. HALL.

6 Div. 165.

Supreme Court of Alabama

March 1, 1945

Finis E. St. John, Jr., of Cullman, for appellant.

Kilpatrick & Entrekin, of Cullman, for appellee.

LIVINGSTON Justice.

As last amended, the bill of complaint seeks to declare a constructive trust in certain described real estate and the rents and profits accruing from the sale of timber cut therefrom, and an accounting as to said rents and profits.

The appeal is by respondent, Major Bevels, from a decree of the lower court overruling demurrers interposed by him to the bill as last amended. The sole question presented is the sufficiency of the bill.

With formal and immaterial allegations omitted, the bill as last amended alleges:

'That about September, 1939, he, his brother Albert Hall, and Major Bevels, entered into an agreement whereby the three of them would purchase, from Ruth Wilbanks, as guardian of the estate of Lewis J. Ashley, a non-compos-mentis, individual portions as agreed mutually between them, giving back their respective mortgages for the purchase money, therefor, the following described land, to-wit: (Describing it.)

'And the complainant avers that by the terms of said agreement the said Major Bevels was to purchase and receive a deed to twenty acres in the southeast cornor of the SE-1/4 of the NW 1/4 of section 36, which twenty acres it was agreed should have for its northern boundary line a gulch running in a southwesterly direction from the east side of said forty; and thence running along said gulch in a southwesterly direction a sufficient distance to encompass the said twenty acres, and from such point due south to the southern boundary line of said forty; and then along its boundaries to the point of beginning, so that twenty acres only would be included within such boundaries. The complainant avers that he is an unlearned man and unskilled in the matter of formulating written descriptions of land, and that, consequently the said Major Bevels volunteered and agreed to perfect a description and to deliver the same to the said Ruth Wilbanks, for the purpose of making the necessary deeds to each of the said three parties, conveying to them their respective parcels into which, it had been agreed, the said original tract was to be divided and conveyed to the said three vendees, and complainant avers that said Major Bevels did formulate three separate descriptions, and deliver them to the said Ruth Wilbanks who used such descriptions so prepared in making the three deeds to said vendees.

'Complainant would show to the court that the said Major Bevels, instead of perfecting a description, and delivering the same to the said vendor of the said twenty acres of land he agreed to purchase, and in violation of the said agreement, and with intent to defraud complainant, formulated and delivered to the said vendor a description which embraced approximately thirty-eight acres of land within its boundaries, instead of twenty acres as he had agreed to do. And complainant further avers that when the time came to execute the deeds and mortgages effectuating the purchase and conveyance of said tract of land from said vendor, the said Major Bevels claimed that he could not go through with his part of the deal because his wife would not sign the purchase money mortgage and suggested that his brother, W. B. Bevels, be allowed to take his place in the transaction, whereupon a deed was executed by said vendor to said W. B. Bevels containing the said fraudulent description prepared by Major Bevels, purporting to convey to said W. B. Bevels thirty-eight acres instead of twenty acres as agreed upon, a copy of which deed is marked exhibit 'A', attached hereto and made a part hereof.

'And complainant would further show to the court that while Major Bevels pretended that his wife prevented him from consummating his contract as aforesaid, he made all of the down payment on closing the deal, and signed the...