Brown v. Mize

• Decision Date: 29 October 1898
• Citation: 24 So. 453,119 Ala. 10
• Parties: BROWN v. MIZE ET AL.
• Court: Alabama Supreme Court

24 So. 453

119 Ala. 10

BROWN v. MIZE ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, St. Clair county; J. R. Dowdell Chancellor.

Bill of John P. Neely, sheriff and ex officio administrator of the estate of Sarah A. Forman, against Charlotta Mize and others. At the end of Neely's term of office his name was stricken as complainant, and A. C. Brown's, his successor, was inserted in his stead. From a decree dismissing the bill for want of equity, complainant appeals. Reversed.

The purpose for which the bill in this case was filed and the facts averred in the bill, as showing the ground for the relief prayed for, are sufficiently stated in the opinion. The defendants moved to dismiss the bill for the want of equity, and also demurred upon the following grounds "First. Because complainant fails to show in and by his bill of complaint that he as administrator of the estate of Sarah A. Forman, deceased, has any interest in the lands mentioned and described in said bill. Second. Because complainant shows in and by his bill of complaint that he as administrator of the estate of Sarah A. Forman, deceased, has no interest in the lands mentioned and described in said bill. Third. Because complainant fails to show in and by his said bill of complaint that Sarah A. Forman did not know in December, 1857, at the time David Forman purchased and paid for the lands and took title thereto in his own name as set forth in paragraph first of his said bill, were paid for with money belonging to her said separate statutory estate and that she did not knowingly acquiesce in and ratify such use of her said money, and title being vested in her said husband for more than 20 years. Fourth. Because complainant shows in and by his bill of complaint that any claim or demand that the said Sarah A. Forman might have had in and to the lands mentioned and described in paragraph 1 of his bill was a stale claim or demand in 1890, when she spoke of instituting proceedings to have the same enforced as stated in paragraph 4 of said bill. Fifth. Because complainant fails to show that there was any pending suit or matters in controversy between the said Sarah A. Forman and the heirs of David Forman deceased, in 1890, which were agreed by and between said parties to be submitted to arbitration. Sixth. Because complainant fails to show in and by his said bill of complain what matters in controversy, if any, were submitted by said Sarah A. Forman and the heirs of David Forman, deceased, for arbitration. Seventh. Because complainant fails to show in and by his bill of complaint that there were any matters in controversy between the said Sarah A. Forman and the heirs of David Forman, deceased, and that the same were submitted to the arbitrators named in paragraph 4 of his said bill. Eighth. Because complainant shows in and by his said bill that the matters, if any, in controversy between the said Sarah A. Forman and the heirs of David Forman, deceased, in 1890, related to land or an interest therein, and complainant fails to show that the alleged agreement between the said Sarah A. Forman and the heirs of David Forman, deceased, to submit such matters in controversy to arbitration was in writing and signed by the parties to be bound thereby. Ninth. Because complainant shows in and by his said bill that the alleged agreement entered into between the said Sarah A Forman and the heirs of David Forman, deceased, to submit the matters in controversy, if any, between them, to arbitration, was void under the statute of frauds. Tenth. Because complainant fails to show in his said bill that the alleged matters in controversy between the said Sarah A. Forman and the heirs of David Forman, deceased, were reduced to writing and submitted to the said arbitration for an award. Eleventh. Because complainant fails to show in and by his bill that all the heirs of David Forman, deceased, were of age and competent to agree to an arbitration in 1890, when the alleged agreement was made between them and the said Sarah A. Forman, as stated in said bill. Twelfth. Because complainant shows in and by his said bill that all of the heirs of the said David Forman, deceased, were not of full age and competent to agree to submit the alleged matters in controversy for arbitration in 1890. Thirteenth. Because complainant shows in and by his said bill that at the time of the alleged arbitration that there were valid debts existing against the estate of the said David Forman, and he fails to show that the creditors of the said estate were parties to or consented to such alleged arbitration. Fourteenth. Because complainant shows in his said bill that at the time of the alleged agreement to submit the matters pertaining to the estate of David Forman, deceased, to arbitration, there were valid debts existing against such estate, and complainant fails to show that the said creditors thereof consented or participated in such arbitration. Fifteenth. Because complainant shows in and by his said bill that the said arbitrators in making the award as attached to said bill and marked 'Exhibit A' transcended their authority in that they attempted to administer the entire estate of the said David Forman, deceased, when it is not shown that any matters were in controversy other than the alleged claims or demands of the said Sarah A. Forman to the lands described in paragraph 1 and dower to the remaining lands. Sixteenth. Because complainant shows in and by his said bill and award of the arbitrators attached thereto marked 'Exhibit A' that said award is indefinite, uncertain and void. Seventeenth. Because complainant fails to show in and by his said bill that at the time of the making of the alleged award by said arbitrators that the said Sarah A. Forman resided upon the lands mentioned and described in paragraph 1 of his said bill. Eighteenth. Because said award of said arbitrators as attached to complainant's bill and marked 'Exhibit A' fails to describe any lands, and the same is indefinite and uncertain as to what lands the said arbitrators intended to award to the said Sarah A. Forman. Nineteenth. Because said award as attached to complainant's bill and marked 'Exhibit A' shows on its face that the said arbitrators transcended their authority in attempting to award to the said Sarah A. forman in fee simple a child's part of the land described in paragraph 2 of his said bill. Twentieth. Because complainant shows by his said bill that the estate of David Forman, deceased, was in debt at the time of the alleged arbitration and he fails to show what debts the said Sarah A. Forman or William C. Forman were to pay or have paid or that the creditors of said estate acquiesced in or ratified said arbitration and award. Twenty-First. Because complainant shows in and by his said bill that none of the parties complied with the alleged award and they refused to recognize such award as binding or obligatory upon them. Twenty-Second. Because complainant shows in and by his said bill that the alleged arbitration and award was had and made more than six years before the institution of this suit, and said award not being under seal or made and entered as the judgment of a court of record, the same is bound by the statute of limitations of six years."

On the submission of the cause on the motion to dismiss and upon the demurrers, the chancellor decreed that the demurrers numbered 13, 14, 20 and 21 be overruled, and that the other grounds of demurrer be sustained, and that the motion to dismiss the bill for the want of equity be sustained. From this decree the complainant appeals, and assigns the rendition thereof as error.

Inzer & Greene, for appellant.

John A. Inzer and M. M. Smith, for appellees.

HARALSON J.

The bill was filed by "John P. Neely, sheriff of St. Clair county and ex officio administrator of the estate of Sarah A. Forman, deceased." It was subsequently amended, as appears, "by complainant, by striking out the name of J. P. Neely, sheriff, and inserting the name of A. C. Brown, his successor in office as sheriff, as the party complainant."

Looking to the prayer of the bill for the objects for which it was filed, it would seem, that its primary object was, to have the court decree a ratification and confirmation of a certain arbitration and award alleged to have been made by and between the said Sarah A. Forman, in her lifetime, and the heirs of David Forman, her husband, in respect to 120 acres of land belonging to his estate, the title to which said Sarah claimed was equitably hers, and to have her dower interest in the remainder of his lands, set apart to her.

It is alleged that her husband, the said David Forman, in December, 1857, purchased 120 acres of land which is particularly described, taking title thereto in his own name, but that he paid for said lands with the money belonging to said Sarah, his wife, as a part of the corpus of her separate estate, and that said conveyance was made to the said David, without the consent of his said wife.

It is further alleged, that said David Forman died on the 13th of February, 1877, owning other lands in the county of St. Clair, besides the 120 acres above referred to, which other lands are fully described; that there was never any administration on his estate; that there are now no valid debts existing against him, and said lands still belong to his estate; that during his lifetime, he conveyed to his son, William C. Forman, 120 acres of land, for the sum of $500, taking the promissory note of said William therefor, no part of which was ever paid by him.

It is not shown by any direct averment of the bill, that the said Sarah A. Forman was ever in possession of said 120 acres of land, or that she ever laid claim thereto in her husband's...