Branford v. Shirley

• Decision Date: 11 January 1940
• Docket Number: 4 Div. 92.
• Citation: 193 So. 165,238 Ala. 632
• Parties: BRANFORD ET AL. v. SHIRLEY.
• Court: Alabama Supreme Court

193 So. 165

238 Ala. 632

BRANFORD ET AL. v. SHIRLEY.

4 Div. 92.

Supreme Court of Alabama

January 11, 1940

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

Bill to sell land for division by Ethel Shirley against Mettie Branford and others. From a decree overruling a demurrer to the bill, the named respondent and others appeal.

Affirmed.

J Hubert Farmer, of Dothan, for appellants.

Horton H. Little, of Luverne, and Martin & Jackson, of Dothan, for appellee.

FOSTER Justice.

This is an appeal by some of the respondents from a decree overruling their demurrer to a bill in equity to sell land for division and settle a certain controversy with these appellants respecting the title to a portion of it.

The bill in its form here material alleges that September 15 1913, Calvin Dykes owned the land consisting of thirty-five acres, and on said day conveyed same to his son C. E. Dykes with his wife joining in the deed. It alleges that the deed contained a condition subsequent that he support and maintain the two grantors and their minor children. That Calvin Dykes died the same year, leaving his widow and children, some of whom were minors. That about the year 1915 C. E. Dykes moved away into another county, and has so lived continuously: that this occurred prior to the enactment of section 8046, Code, and he has not, since doing so, complied with the said requirement.

And in another paragraph, the bill alleges that the widow has resided upon and had exclusive adverse possession of the land from the time her husband died, in 1913, until she died in December 1935: that she held it as her own during all that time, and had the continuous, peaceable, open, notorious, exclusive, hostile and adverse possession, claiming same as her own for more than ten years prior to the date of her death.

And in another paragraph it alleges on February 24, 1916, the said C. E. Dykes conveyed to A. E. Dykes, his brother, fifteen acres of the land, and that he had notice of the condition contained in the deed to C. E. Dykes.

And again on December 28, 1935, the said C. E. Dykes, J. G. Dykes, L. W. Dykes, Gladys Exum and Mettie Branford deeded to W. P. Shiver the other twenty acres of the original thirty-five acre tract, and that he in turn has mortgaged it to Cummins. The grantors to Shiver were children of the original owner and his wife, but not all of them, and the deed was executed a few days after the death of the widow. Complainant is the only child of a deceased daughter of Calvin and Laura Dykes, who had died before they did. Those here complaining are Mettie Branford, Gladys Exum and W. P. Shiver, who are parties to the deed of the twenty acres made to Shiver, and James Dykes is also an appellant. He is a son of A. E. Dykes, grantee in the deed to the fifteen acres. The other children of A. E. Dykes filed separate demurrer, which was separately overruled, and they have not appealed nor assigned error. But James Dykes joined in the demurrer of the other appellants.

So that on this appeal the title to both tracts is involved, but we think they are governed by the same principles. Though the deed to A. E. Dykes was made in 1916, there appears never to have been made the assertion of claim under it until after the death of the widow in 1935. It is also noted that C. E. Dykes, the original grantee in the deed thought to have a condition subsequent, does not join in the demurrer or make other defense.

The only grounds of demurrer go to the equity of the bill generally (not here insisted on), and the time element, by way of the statute of limitations, staleness of the claim, and laches. They do not question the claim made in the bill that the terms of the deed in 1913 create a condition subsequent. No fraud is charged in any respect.

The deed was made prior to the enactment of section 8046, Code. That provision of the law does not affect a deed executed prior to its enactment, though the covenant to support was also breached before that statute became effective. As to all such deeds, fraud must be alleged, unless they are expressly or impliedly made defeasible for breach of the covenant. Woods v. Wright, 223 Ala. 173, 134 So. 865; Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 183; First National Bank v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A.1918F, 353; Johnson v. Chamblee, 202...