Bowden v. Turner

• Court: Alabama Supreme Court
• Writing for the Court: LIVINGSTON, Justice.
• Citation: Bowden v. Turner, 243 Ala. 182, 8 So.2d 849 (Ala. 1942)
• Decision Date: 14 April 1942
• Docket Number: 4 Div. 216.
• Parties: BOWDEN et al. v. TURNER.

8 So.2d 849

243 Ala. 182

BOWDEN et al. v. TURNER.

4 Div. 216.

Supreme Court of Alabama

April 14, 1942

Rehearing Denied June 30, 1942.

Chauncey Sparks, of Eufaula, and J. J. Winn, of Clayton, for appellants.

M Sollie, of Ozark, and Jackson & Bennett, of Clayton, for appellee.

LIVINGSTON, Justice.

This suit was commenced in the Circuit Court, at law, of Barbour County, by John Wesley Turner against Charlie Bowden and Lock Bowden as an action of statutory ejectment to recover possession of certain lands described in the complaint. Before the completion of the testimony on the trial of the ejectment suit, the trial court removed the cause from the law to the equity docket, and the bill of complaint here considered was there filed to meet the requirements of the statute as to pleading. The respondents Bell Baker and her husband, Lether Baker, were not parties to the ejectment suit.

The appeal is from a decree of the Circuit Court of Barbour County, in equity, overruling demurrers to the bill of complaint.

The relief sought here against Bell Baker and Lether Baker is specific performance of a contract to sell to complainant the lands here involved. The allegations of the bill trace the title of all the parties here involved to one Arthur Turner as a common source. Arthur Turner died in 1916, leaving surviving Bell Turner, his widow and now Bell Baker, Eddie Lee Turner and T. C. Turner as his sole heirs at law and next of kin.

The bill alleges, in substance, that sometime prior to November 1938, Bell Baker and her husband Lether Baker, T. C. Turner Eddie Lee Turner and his wife Katie Mae Turner orally agreed to sell the lands here involved to complainant, John Wesley Turner, at and for the sum of $250; that a part of the purchase price was paid, and the purchaser put in possession of the land, with the agreement to execute and deliver a deed to him when the purchase price was paid in full: that the purchase price was paid in full, and that in November 1938 a deed was delivered to complainant. That the deed was properly executed by T. C. Turner, Eddie Lee Turner and his wife Katie Mae Turner, but was not properly executed by Bell Baker and her husband Lether Baker, in that, Lether Baker signed the deed by "mark," witnessed by only one witness,-a copy of the deed is attached to and made a part of the bill of complaint, and it does not purport to carry the acknowledgment of Lether Baker. The bill further alleges that complainant was in possession of the land continuously from the date of the oral contract until during the year 1939 when the respondents Charlie Bowden and Lock Bowden, through an ejectment suit against complainant's tenants, evicted said tenants and entered upon, and have since held and now hold, the land involved.

Complainant's theory is, that while the deed, above referred to, is not sufficient to convey the legal title of Bell Baker, it is a contract to convey and one which equity will enforce by a decree for specific performance.

The bill further alleges that Charlie Bowden and Lock Bowden claim title to the interest of Bell Baker and her husband Lether Baker, and T. C. Turner in and to the land involved by virtue of quitclaim deeds executed and delivered to them during the month of August 1939, and before the deed to complainant was recorded. That at the time the quitclaim deeds were executed and delivered to respondents Charlie Bowden and Lock Bowden, the deed to complainant had been signed by Lether Baker by "mark" only and witnessed by only one witness but that at that time complainant was in possession of the land under his contract to purchase, having paid a part of the purchase price therefor.

The bill further alleges that Charlie Bowden and Lock Bowden claim title to the land involved through the following conveyances and sources, a mortgage by Arthur Turner and wife Bell Turner to W. J. Stewart; foreclosure of the Stewart mortgage, at which foreclosure sale Stewart became the purchaser on February 28, 1921, ownership of the lands by Stewart until his death in June 1934; purchase of the lands by Charlie Bowden and Lock Bowden from Lillie Stewart, the widow of W. J. Stewart, and John Stewart, the sole heir at law of W. J. Stewart. The bill further alleges that the foreclosure sale was void because the debt secured thereby had been paid in full, and that the said W. J. Stewart entered upon the mortgage record in the office of the judge of probate the fact that the indebtedness secured by the mortgage had been paid in full before the foreclosure sale and that the mortgage was transferred to Bell Turner by W. J Stewart while she was the widow of...