Cannon v. Birmingham Trust & Sav. Co.

• Decision Date: 21 October 1915
• Docket Number: 66
• Citation: 194 Ala. 469,69 So. 934
• Parties: CANNON v. BIRMINGHAM TRUST & SAVINGS CO. et al.
• Court: Alabama Supreme Court

69 So. 934

194 Ala. 469

CANNON v. BIRMINGHAM TRUST & SAVINGS CO. et al.

No. 66

Supreme Court of Alabama

October 21, 1915

Rehearing Denied Nov. 18, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by Rose Johns Cannon against the Birmingham Trust & Savings Company and others. From a decree sustaining demurrers to the bill, complainant appeals. Affirmed.

Allen &amp Bell and Burgin, Jenkins & Brown, all of Birmingham, for appellant.

Tillman Bradley & Morrow and Roy M. Sterne, all of Birmingham, for appellees.

MAYFIELD J.

The case made by appellant in her brief is practically as follows: Appellant, who is the widow of L.W. Johns, deceased, filed her bill in the chancery court of Jefferson county, Ala., seeking to cancel or annul a certain trust agreement signed by the defendants and herself, the date of which said agreement was December 22, 1911. She also seeks to recover the sum of $32,357.60, or the securities in which said sum was invested, which amount, it is alleged by the bill, "respondents hold *** and decline and refuse to pay or deliver *** to complainant, and they both claim to hold the same under and by virtue of the terms and provisions of same written instrument." It is also alleged by the bill, as amended, that the complainant acquired her right to said sum of money by antenuptial gift from her husband, said L.W. Johns, of certain shares of the capital stock of the Birmingham Railway, Light & Power Company, which said shares of the capital stock of said company were exchanged for certain shares in the American Cities Railway & Light Company, as evidenced by its certificates numbered 1235 and 1064 for the common stock of said company, and certificates numbered 2063 and 594 for the preferred stock of said company, which said last-named shares of stock and certificates were held by the said Birmingham Trust & Savings Company in trust for the use and benefit of this complainant for and in the place of said antenuptial gift. The grounds alleged for cancellation and annulment of this instrument are, that the same was an unconscionable contract; that it was without consideration passing to complainant; that it was signed by her under duress or undue influence; or that its execution by her was procured by fraud. Complainant attached as an exhibit to her bill a contract signed by L.W. Johns, the defendant, Birmingham Trust & Savings Company, and the complainant, on the 4th day of July, 1908. It is averred that this instrument showed how complainant became the owner of said shares of stock which were subsequently converted into money. After this contract last referred to was made an exhibit to the bill, demurrers were filed on the theory that this contract of itself, independent of the one sought to be canceled and annulled by bill, afforded the respondents the right to withhold from the complainant the money or securities sought to be recovered by the bill. To meet the ruling of the court on these demurrers an amendment was filed, alleging that at the time this contract was signed the complainant and her husband were living together as husband and wife, and that a part of the consideration and one of the principal considerations of said contract was to the effect that said agreement, when executed, should be in lieu of any claim for alimony by complainant against her said husband in the event of a separation, and it was alleged that this illegal consideration and provision in this contract was inseparable from the balance of same so as to render the whole agreement absolutely void as against public policy, and to afford the respondents no legal authority to hold and retain the moneys and securities sought to be recovered. To this bill as last amended, the chancellor sustained a demurrer, and from the decree sustaining the same this appeal is taken.

Such, as stated, is the case made by appellant's brief.

If it should be conceded (but it is not) that the original bill was sufficient in its averments to warrant relief, the amended bill was certainly subject to several of the 158 grounds of demurrer assigned. The amended bill having made the agreement of July 4, 1908, a part thereof, and the agreement of December 22, 1911, sought to be canceled, being made a substitute for the former, the complainant could not be afforded the relief, if the latter agreement should be canceled; because, under the former agreement, the respondents would be entitled to hold the funds sought to be taken from them. There is no attempt made in the bill to have the first agreement--that of July 4, 1908--canceled. The bill only seeks to have the latter agreement canceled. It is true that complainant contends that she is not bound by this first written agreement; and that she was compelled, by the rulings of the chancellor on demurrer to her original bill, to add this written agreement of July 4, 1908, as an exhibit to her bill. This contention, however, is of course not tenable. She was not forced to add it as an exhibit to her bill, or the record does not show that she was so compelled by the chancellor. It is true, however, that amendment was made after demurrer was sustained, and the amendment was probably intended to meet the defect pointed out by the demurrer, but the act of so amending was voluntary. The complainant, having made this agreement a part of her bill, was bound by it, unless she also sought to have it canceled or annulled.

The evident contention of appellant is that she is entitled to the trust fund, under a prior and oral antenuptial agreement between her and her deceased husband, L.W. Johns, and that the present trust fund is the proceeds of this antenuptial gift. The fallacy of this contention, however, is made certain by the fact that, construing the bill most strongly against the complainant--as we must do--it fails to aver that this antenuptial parol agreement was ever consummated by a delivery of the gift. In fact, the bill affirmatively shows that it never was so consummated. The bill affirmatively shows that the written postnuptial agreement of July 4, 1908 was in lieu of the oral antenuptial one; and that the written agreement of December 22, 1911, was, in turn, in lieu of the one of July 4, 1908. It is true that complainant seeks to have the last agreement canceled, and claims that the one of July 4, 1908, is...