Burleson v. Mays

CourtSupreme Court of Alabama
Citation66 So. 36,189 Ala. 107
Docket Number827
Decision Date30 June 1914

Rehearing Denied July 25, 1914

Appeal from Chancery Court, Marion County; W.H. Simpson, Chancellor.

Bill by J.D. Burleson against Martha E. Mays to enjoin an ejectment suit, and to quiet title to land. Decree for respondent, and complainant appeals. Reversed and rendered.

See also, 61 So. 75.

E.B. &amp K.V. Fite, of Hamilton, for appellant.

Kirk Carmichael & Rather, of Tuscumbia, and R.W. Quinn, of Hamilton, for appellee.


This is a bill in equity to enjoin an action of ejectment. The ground for injunction is equitable estoppel. Appellant and appellee claim title through a common source, one Seth Bottoms, who was the father of appellee. Appellant claims by purchase and deed from Prudence E. Frederick, another daughter of Seth Bottoms. The common source of title, by will of date January 30, 1873, devised his property to the two daughters in question. The will is short and is as follows:

"Know all men by these presents: That I, Seth Bottoms, do will and bequeath to my two daughters, Prudence E. Bottoms and Martha E. Bottoms all of my estate, both lands and personal. The personal property shall be divided between the two daughters Prudence E. Bottoms and Martha E. Bottoms at my decease. My lands shall be divided as I shall prescribe. I do will and bequeath to my daughter Prudence E. Bottoms all of the lands belonging to the Jesse Weatherly place, or all of the lands that I bought of Jesse Weatherly with all of the improvements thereon. I do will and bequeath to my daughter Martha E. Bottoms all of the lands belonging to the place I now live on with all improvements thereon. All the lands that I shall buy or enter shall be divided between the two said daughters. If Prudence E. Bottoms should decease without leaving any lawful heir, Martha E. Bottoms shall have all of my estate; if Martha E. Bottoms should decease without leaving any lawful heir, Prudence E. Bottoms shall have all of my estate. If I should decease before my wife Darkas Bottoms, she, the said Darkas Bottoms, shall have the full control of all of my estate until her death; but shall not sell any of the lands or any part thereof. After her death the whole of my estate shall be as I have devised."

The will was probated in Marion county, October 24, 1904. A certain deed from the father to appellee was made a part of the petition, by exhibit, for probate of the will; but by agreement between the parties on a contest of the probate of the will, this exhibit was withdrawn, and the contest thereupon withdrawn; and the will was probated without reference to the deed. The deed in question was made August 13, 1903, and conveyed the lands in dispute to appellee, they being the same lands theretofore devised by the testator to Prudence E. Bottoms, through whom appellant claims by deed.

The exact terms of this agreement between the parties on the contest of the will, whereby the deed was withdrawn, the contest dismissed, and the will allowed to be probated, are in dispute; but the parol proof, aided by the record of the probate court of the proceedings probating the will, shows that appellee was seeking to have the will probated, with the deed as a part thereof, and that Prudence E., who would thereby be deprived of the lands devised to her, contested the probate of the will, but that, in consequence of the agreement, appellee, who was the proponent in the probate court, withdrew the deed as a part of the will, and in consideration thereof, Prudence E. withdrew her contest, and the will, without reference to the deed, was probated. It further appears that appellee was in possession of the land in question, which was devised to Prudence E., at the time of the contest, and that after the will was probated she moved off the land and Prudence E. took possession, and held possession until she sold to appellant. The complainant alleges, and his proof tends to show, that by the agreement between Martha E. Mays and Prudence E. Frederick, wherein the contest to the will was withdrawn and the deed withdrawn, etc., Prudence E., appellant's grantor, was to receive the lands in question under the will, in absolute fee, and Martha E. Mays, the other lands in absolute fee, notwithstanding the conditions of the will, and the deed. The effect and the details of this agreement are denied by appellee in her answer and proof. The record of the probate court and the acts and conduct of the parties tend strongly to support the allegations of the bill and the theory of the appellant.

It has been ruled by this court that the compromise of matters in dispute between parties or litigants, in the absence of fraud, is of itself a sufficient consideration to uphold a contract of settlement which, when made, was binding on both parties. Wyatt v. Evins, 52 Ala. 285; Allen v. Prater, 30 Ala. 458. On a subsequent appeal in the latter case (35 Ala. 169), it is said that the mere existence of a controversy, with no suit pending, without more, is not a sufficient consideration to support a verbal settlement; that there must, in addition, be some reasonable ground for the controversy. This has been frequently repeated by this court. Crawford v. Engram, 157 Ala. 321, 47 So. 712. Here there was a pending suit, and reasonable ground for the controversy.

As the agreement in question related to lands, and no writings were executed, of course it could not pass the legal title which had become vested by the will or the deed. If the parties had executed deeds in accordance with the agreement, there would be no need of a bill in equity to afford any relief to the parties; but it is on the theory that no such deeds were executed that equity is called upon to afford the relief and to prevent one of the parties to the agreement from receiving the benefits of it and avoiding the burdens thereof.

If the deed in question was valid, and passed the title to appellee, then of course Prudence E. took no title under the will, and the probating of that instrument was neither beneficial nor detrimental to either party, so far as these lands were concerned.

At the time the will was offered for probate the deed was not thought by either party to be valid except as a testamentary document. This is shown by the fact that appellee offered it as a part of the will for probate; and it was not until this court held that it was valid as a deed, and was not a testamentary disposition, that the parties were certain as to its effect. See Mays v. Burleson, 61 So. 75.

As to the character of the estates which Martha and Prudence took under the will, that question, which this court expressly declined to decide on the former appeal (61 So. 75), is still a doubtful question; so there was certainly a real and bona fide dispute and contention between the parties when they made the agreement for the settlement of the differences between them. And it was, no doubt, the desire to avoid the very kind of litigation which has ensued that induced the settlement.

As before stated, the records of the probate court, in part, bear out the contention of Prudence E. and appellant as to this settlement. While it was in part in parol, a portion of the consideration passed from one to the other, and the parties were put in possession of the lands, and the case was therefore brought within the exception to the statute of frauds.

It is also alleged, and the proof tends to show, that appellee knew that appellant was buying the lands in question from Prudence E. Frederick, and that with such knowledge appellee represented to appellant that Prudence E. had a good title to the land and a right to convey, and that these representations partly induced appellant to purchase. If this be true--and we hold it sufficiently alleged and satisfactorily proven--the complainant was entitled to the relief prayed. It is, as we find from the record, a typical case for injunctive relief against an action at law on the ground of an equitable estoppel. The case made by the bill and supported by the proof shows that complainant has the equitable title, but that the respondent has the legal title, and is attempting to enforce it against complainant in an unconscionable action at law. The chancellor held that the allegations of the bill were sufficient, but that the proof failed to support the allegations. In this last finding we cannot agree with the chancellor. It is true that the respondent and some of her witnesses deny the terms of the settlement, and that she agreed that if the contest of the will was withdrawn she would consent for her sister to have the lands in question in fee, and she would take those devised to her in the same manner, and would withdraw the deed and not claim thereunder, but her every act, word, and deed, when not specifically making denial of the agreement, shows or tends to show that the agreement was what complainant alleges it to have been, and that respondent so treated it for a long time, and that her effort to claim the land was an afterthought.

The evidence is undisputed that respondent surrendered the possession of the land in question to her sister immediately after the settlement, which was in accord with the agreement and wholly inconsistent with her claim under the deed from her father after the settlement, until shortly before the action in ejectment was brought, which this bill seeks to enjoin. She knew that her sister was claiming the fee to this land, and that she had sold it to this complainant; and the fact was that the sale met the approval of respondent, who made the statement that she was glad to have complainant as a neighbor, and her family thereafter, with her knowledge, rented a part of the land from complainant. If s...

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