Biddy v. Biddy

• Decision Date: 10 April 1969
• Docket Number: 6 Div. 303
• Citation: 284 Ala. 68,222 So.2d 162
• Parties: Jack BIDDY v. Lee M. BIDDY et al.
• Court: Alabama Supreme Court

Page 162

222 So.2d 162

284 Ala. 68

Jack BIDDY v. Lee M. BIDDY et al.

6 Div. 303.

Supreme Court of Alabama.

April 10, 1969.

Harry B. Cohen, Birmingham, for appellant.

James, Beavers & Harrison, Birmingham, for appellees.

LAWSON, Justice.

This litigation involves a lot and a building thereon located in Tarrant City. The building was used for many years as a cafe. We will sometimes hereinafter refer to the lot and building as the suit property.

We should be confronted on this appeal with these comparatively simple questions:

(1) Did the trial court err in its decree of July 30, 1965, in decreeing that Jack F. Biddy and Oscar T. Biddy each owned an undivided one-half interest in the suit property; and (2) did the trial court err in its decree of November 17, 1965, in overruling objections and exceptions interposed to the Register's amended report filed on October 21, 1965, and in confirming that report?

But we are not so fortunate. The manner in which the litigation was handled in the trial court has resulted in this appeal being submitted on a most confusing record and in errors being assigned which do not go to the real merits of the controversy between the parties.

A summary of the entire bewildering record has been before us in consultation, but in this opinion we will try to present as succinctly as possible only those matters which we think are necessary to an understanding of the opinion and of our holdings.

The suit property was purchased in 1946 by Jack F. Biddy and his brother, Oscar T. Biddy, from P.G. Cowden and wife for the sum of $6,000. Each of the grantees paid one half of the consideration and for several years they understood that each of them owned an undivided one-half interest in the suit property. We will sometimes hereinafter refer to Jack F. Biddy simply as Jack and to Oscar T. Biddy as Oscar

It appears that the first litigation affecting the suit property was instituted in the Circuit Court of Jefferson County, in Equity, on September 19, 1963, by Lee M. Biddy and wife against Jack. That suit was given Circuit Court number 132-062. Lee M. Biddy, a brother of Jack and Oscar, will sometimes hereinafter be referred to simply as Lee.

In their bill, Lee and his wife alleged that they owned an undivided one-half interest in the suit property; that the other one-half undivided interest therein was owned by Jack; that the suit property could not be equitably divided in kind and they prayed that it be sold for a division of proceeds among the tenants in common, namely, among the complainants and the respondent. The bill filed by Lee and his wife also alleged that a real estate company was holding "in escrow" certain money derived from the rent of the suit property and prayed that such funds be "disbursed in the proper proportion dependent upon the ownership of said land."

The bill filed by Lee and his wife did not allege in what manner they acquired an undivided one-half interest in the suit property. While such an averment is not necessary (Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779), we think it might add to an understanding of this opinion to observe at this point that the evidence shows they claimed such an interest under a deed to them from Oscar bearing date of January 16, 1963, which deed contains the following provision:

"Grantees herein assume and agree to pay all due or to become due by the Grantor herein on above described property; specifically Grantor's share on the mortgage in favor of The First National Bank of Birmingham, Tarrant Branch. (Above-said Bank holds mortgage on entire above described property and Grantor owns undivided one-half interest in and to said property which he is granting by this instrument to Grantees herein.)"

Jack filed an answer on April 27, 1964, wherein he denied that Lee and his wife, the complainants, owned any interest in the suit property and wherein he averred that he was the "sole legal and equitable owner of the entire title in fee simple" to the suit property and that, therefore, there was no reason for a sale for division or for the real estate company to pay over any money collected by it as rent to anyone other than the respondent, Jack Biddy.

His claim of sole ownership of the suit property was based on grounds substantially as follows:

(1) He acquired an undivided one-half interest in the suit property by virtue of the 1946 deed from P.G. Cowden and wife to himself and Oscar. He acquired Oscar's undivided interest in the suit property under a deed executed to him by Oscar in January of 1957, which he failed to have recorded and which Oscar later "purloined" and destroyed or secreted. Lee and his wife had actual notice of the execution and delivery of the aforementioned deed prior to any purported transfer or conveyance by Oscar to them and, consequently, they were not bona fide purchasers for value of any right, title or interest in and to the suit property.

(2) Because of "large sums of money expended by him for taxes, insurance and other expenses in and about the upkeep, maintenance, and overhead" of the suit property, which payments were averred to constitute a resulting trust in Jack's favor.

(3) Because he redeemed the suit property from a tax sale to the State of Alabama.

The answer contained averments to the effect that in October, 1956, Jack orally leased his one-half undivided interest in the suit property to Oscar for the sum of $60 a month and upon the further consideration that Oscar, at his own expense, would repair and remodel the building so that it could be used as a cafe, Oscar having formed a partnership with one Frank Barnett (Baronet) for the purpose of going into the cafe business. Oscar was without funds to make the repairs and to remodel the building and he could not borrow the money needed for such purposes without Jack's assistance, so Jack signed a note and mortgage to the First National Bank of Birmingham, Tarrant City Branch, as a "co-signer" with Oscar for the sum of $4,000. Later Oscar needed another loan from the same bank in the sum of $1,000 and Oscar executed a new note to the bank in the sum of $5,000, which note Jack "co-signed" as "surety" for Oscar. There was a mortgage executed to the bank on the suit property to secure the payment of the $5,000 note, although it was not so alleged in the answer that Jack signed that mortgage. Oscar and Frank Barnett (Baronet) operated the cafe for approximately three months and Oscar failed to pay Jack the $60 monthly rent which he had agreed to pay. Oscar failed to make any payments on the note which he and Jack executed to the bank; consequently that responsibility fell on Jack, who by February 21, 1963, had paid to the bank as principal and interest approximately the sum of $8,000.

The parts of Jack's answer which we have summarized in the preceding paragraph perhaps shed some light on the averments of Paragraph 11 of the answer which Jack treated as a cross bill. That paragraph reads:

"Respondent claims of the Complainants by way of Cross-Bill the sum of $8,000.00 due from the Complainants by promissory note and mortgage in the principal amount of $5,000.00 dated, to-wit, the 22nd day of December, 1956, executed by O.T. [Oscar] Biddy, as principal, and by Respondent Jack Biddy, as surety, and payable with interest to the First National Bank of Birmingham, (Tarrant Branch), which promissory note, secured by said mortgage on the property described in the Complaint, was assumed by Complainants, and which note and mortgage were fully paid by the Respondent Jack Biddy who thereupon became the purchaser of said note and mortgage and subrogated to all of the rights and remedies of said Bank. Respondent further avers that as part of the consideration of said note and mortgage the makers waived their rights to exemption as to personal property and agreed to pay a reasonable attorney's fee, which Respondent hereby also claims in the sum of, to-wit, $2,000.00."

The answer filed by Jack concludes as follows:

"WHEREFORE, PREMISES CONSIDERED, Respondent humbly prays that this Honorable Court will adjudge and decree that the Respondent Jack Biddy is the sole legal and equitable owner of the real property described in the Complaint and the Complainants have no right, title or interest therein; that Complainants are indebted to the Respondent in the amount of Ten Thousand Dollars ($10,000.00) on the aforementioned promissory note and mortgage assumed by the Complainants; and that this Honorable Court will require the Complainants to pay to the Respondent a reasonable fee for the services of his Solicitor who represents him in this cause; and Respondent prays for such other, further, and special relief as to which this Honorable Court may deem that he is entitled, in equity and good conscience."

The record indicates that the complainants, Lee Biddy and his wife, filed some kind of responsive pleading to Jack's answer which was captioned "Answer of Respondent." That responsive pleading is referred to in a note of testimony later filed on behalf of Lee Biddy and wife as the "Answer to 'Answer of Respondent.' " An answer to an answer in equity is not proper. Matter in rebuttal to an answer filed in an equity case must be presented by amendment to the bill.--Equity Rule 27. But, of course, an answer to a cross bill is proper.

We are not confronted, however, with determining the nature or character of the pleading filed by the complainants to the "Answer of Respondent" because no such instrument is in this record.

On May 10, 1965, Case No. 132-062 came on for a hearing before Judge Barber and a jury. The respondent, Jack Biddy, upon the filing of his answer, demanded "a jury for the trial of the issue of title and of all other issues triable by a jury." The request for a jury trial was in keeping with our holding in Kirkley v. Green, 273 Ala. 602, 604, 143 So.2d 454, where we said: "We have held that by virtue of Title 7, §§ 322-326, parties to a...