Carroll v. Draughon

• Decision Date: 13 February 1908
• Parties: CARROLL v. DRAUGHON ET AL.
• Court: Alabama Supreme Court

45 So. 919

154 Ala. 430

CARROLL v. DRAUGHON ET AL.

Supreme Court of Alabama

February 13, 1908

Appeal from Chancery Court, Geneva County; L. D. Gardner Chancellor.

Bill by D. S. Carroll against J. W. Draughon and others for an accounting and to set aside a judicial sale. Decree for respondents on demurrer to bill, and complainant appeals. Affirmed.

The original bill avers that D. S. Carroll was in February, 1901 united in marriage to Ophelia A. Peacock, who was the widow of Delaware W. Peacock, who died intestate April 4, 1894 leaving surviving him his widow and two children, Emma and Chal D. Peacock, both of whom were under the age of 14 at the time of his death; that there was no administration on the estate of Delaware Peacock, but his widow remained in possession of a homestead of 150 acres of land, and out of the proceeds of the land maintained and supported herself and children until the month of October, 1901; that, after her marriage to complainant, by petition to the probate court of Geneva county, she had set aside to her by commissioners appointed by said court the said homestead, which is described in the bill; that the petition was made in behalf of herself and her then minor child Chal D. Peacock, Emma Peacock having at that time become of age, married one Adams abandoned the homestead, and moved to Texas; that just prior to her leaving the state, and after she had become of legal age, and after she had left the homestead, J. R. Faircloth and one B. T. Fulton, conceiving that she had an interest in said homestead, purchased of said Emma a half interest in said homestead for the insignificant sum of $225, and for that reason resisted the application of complainant's wife, when she had the same set apart to her by said commissioners; that after the commissioners made their report, showing that at that time the estate was insolvent and after they had set aside said homestead to said Ophelia Peacock (now Carroll), the said Fulton and Faircloth filed their bill in the chancery court of Geneva county against her and her minor child, Chal D. Peacock, praying, among other things, for a receiver to take charge of said homestead, and asking for an accounting by said Ophelia Carroll for the income and profits arising from said homestead and for a division of same after said accounting, claiming a one-third interest in the same. This bill was resisted, and no receiver was ever appointed. In the meantime Fulton, one of the complainants in the last-mentioned bill, died intestate leaving surviving him a wife and children, when the present respondent J. W. Draughon, as next friend of the children of said Fulton, was made a party complainant, and with J. R. Faircloth prosecuted an appeal from the decision of the chancellor in sustaining a demurrer to their bill, and forced the respondent Ophelia Carroll to employ counsel to further defend against the appeal, which resulted in a reversal of the chancellor's decree. Respondents Ophelia Carroll and Chal D. Peacock then filed their answer, denying the insolvency of the estate of Delaware Peacock, as alleged, at the time of his death, and after proof was taken under this issue the chancellor decreed against the respondents, who appealed from the decree to the Supreme Court, giving bond only for the cost of the appeal; they being unable to execute a supersedeas bond. However, respondents protested against the order to sell the homestead until the case was finally disposed of on appeal; but the said respondent Draughon was anxious to possess himself of the said homestead, which was adjacent to and partly in the growing town of Hartford, where he resided at that time, and against the protest of this complainant, who was exercising himself in behalf of his wife, had a writ of possession issued, and had the sheriff to forcibly eject the wife of complainant, and, to add insult to injury, wrote a note to this complainant forbidding him or his wife or their tenants going on the land; and complainant avers that as soon as possible the respondent Draughon had thus possessed himself of this homestead, he having been the purchaser at the sale at a price not half the value, because of the refusal of competitors to bid on land they knew was involved in litigation and which was then pending in the Supreme Court. It is then averred that, after the cause was submitted to the Supreme Court, it went into the hands of the late Chief Justice, and by reason of his protracted illness, which resulted in his death, the opinion was not rendered until after he was dead. This long delay was burdensome to complainant's wife, who was unable to pay an attorney through all this litigation, except upon a contingency which came higher to her. Besides she was losing the proceeds arising from her homestead, and it was being cleared up, and the timber being taken off the land, which was available and worth more in town residence and business lots. All this was against her protest. Complainant avers that his wife was dispossessed of this homestead forcibly in January, 1905, and in April, 1906, the Supreme Court of Alabama reversed the decree of the chancellor and dismissed the bill, and in June, 1906, refused the motion of said complainants Faircloth and others to modify said decree; that immediately thereupon said Ophelia Carroll made demand on respondents Draughon and Rooney for the possession of her homestead, which they had had the possession of since January, 1905, and on their refusal brought unlawful detainer for these lands, which the defendants carried to the circuit court under the provisions of the Code, which allowed them to contest the title to the lands. The circuit court held that it was necessary for Ophelia Carroll to have the order of sale made by the chancery court set aside before she could proceed with her suit, and the case was dismissed at the cost of Ophelia Carroll. Thereupon she filed her petition and bill in the chancery court, praying, among other things, for an accounting with the respondents Draughon and Rooney for the timber they had removed off the land while in their possession, for the use of the same, and that the same be restored to her possession. Pending the hearing of this cause the wife of this complainant died, leaving to this complainant a life interest to all the rights she had in said homestead, together with all the moneys expended by him for her in the defense of said litigation. Besides, as a better protection to complainant for the money and trouble paid by him in said litigation, together with other means necessary for her sustenance which he had advanced, she, the said Ophelia Carroll did on the 3d day of August, 1906, execute and deliver to complainant all her right, title, and interest she had in same, that he might hold it both for her and himself as a home, a copy of which is...