Braly v. Polhill

• Decision Date: 05 March 1936
• Docket Number: 8 Div. 669
• Citation: 166 So. 419,231 Ala. 633
• Parties: BRALY v. POLHILL.
• Court: Alabama Supreme Court

166 So. 419

231 Ala. 633

BRALY v. POLHILL.

8 Div. 669

Supreme Court of Alabama

March 5, 1936

Appeal from Circuit Court, Limestone County; W.W. Calahan, Judge.

Bill in equity by Irene J. Polhill against George L. Braly. From a decree overruling a demurrer to the bill, respondent appeals.

Affirmed.

Jas. E Horton and Edw. Goodrich, both of Athens, for appellant.

Julian Harris and Norman W. Harris, both of Decatur, for appellee.

BROWN Justice.

The complainant, appellee here, a grantee of Rebecca Eubank Taylor and T.C. Eubank, by this bill filed against appellant a grantee, Kate Eubank, and Dixie Yearwood, offers to contribute the ratio of her grantors in the outlay made by the grantors of the defendant, appellant here, in redeeming from mortgage foreclosure 160 acres of land situated in Limestone county, Ala., formerly owned by W.C. and Mary Eubank, husband and wife, as tenants in common.

The mortgage was executed in 1925 to the Federal Land Bank by said Eubank and wife to secure an indebtedness of $3,200. The mortgage was foreclosed on the 28th day of August, 1933, and Ora L. Stout became the purchaser thereof at and for the sum of $3,500, receiving a conveyance vesting in her the legal title.

Thereafter in May, 1934, Stout conveyed the property to complainant, and she went into possession holding under said conveyance from Stout, and remained in possession until January, 1935.

In the fall of 1934 Kate Eubank, a daughter of the mortgagors notified complainant of her desire to exercise the statutory right of redemption, and, as the bill avers, "complainant furnished to the said Kate Eubank a statement of the amount required to effect a redemption. On to-wit January 15, 1935, Kate Eubank paid to complainant the requisite amount and effected a redemption of said land. At said time it was represented to complainant that Kate Eubank and Dixie Yearwood had a right to redeem said property and that they were acting jointly in effecting redemption and, therefore, complainant executed a deed conveying the property to Kate Eubank and Dixie Yearwood upon receipt by her of the proper amount, viz.: Four Thousand Six Hundred Fifty Dollars and Thirty-Seven Cents ($4,650.37). Said deed recited that the grantees were redeeming the property therein conveyed from the aforesaid foreclosure and that it was executed to effectuate such redemption. On the same day, to-wit January 15, 1935, Kate Eubank and Dixie Yearwood by proper deed conveyed said property to the defendant, George L. Braly, who is now in possession thereof under said deed."

On September 7, 1929, Mary Eubank conveyed the fee to her interest in said property to T.C. Eubank, reserving a life interest therein. She died in May, 1930.

W.C. Eubank, who was a resident of Limestone county, Ala., died testate in 1925, and his will was duly probated on August 27, 1925.

Said W.C. Eubank left surviving him five children and two grandchildren. The children were Tom C. Eubank, Dixie Yearwood, Rebecca E. Taylor, Jennie Slaughter, and Kate Eubank. The grandchildren were William D. and Martha A. Eubank, children of a son who died before the death of his father, W.C. Eubank.

By his last will and testament, W.C. Eubank, after making provision for two of his children--Jennie Slaughter and Dixie Yearwood--disposed of his interest in said land as follows: "All the rest and residue of any property of which I may die seized and possessed or entitled to, real, personal or mixed, it is my will and desire shall go to my other children, not including Jennie Slaughter and Dixie Yearwood, share and share alike, and to the children of my deceased son, J.H. Eubank, the said children of J.H. Eubank to share in the proportion in which their father would have shared if living." (Italics supplied.)

It seems to be conceded that at the time of the foreclosure the property was jointly owned by T.C. Eubank, who had five-eighths interest therein, Kate Eubank, one-eighth, Rebecca E. Taylor, one-eighth, William D. and Martha A. Eubank each one-sixteenth.

The circuit court, by the decree overruling the defendant's demurrer to the bill, upholds the complainant's right to contribute the due proportion of her grantors of the outlay by the grantors of the defendant in redeeming the property and a rehabilitation of her title.

The first contention of the appellant is that, notwithstanding Dixie Yearwood was without interest or...