Casey v. Krump

• Decision Date: 15 September 1955
• Docket Number: 1 Div. 628
• Parties: Mildred CASEY, v. Matt KRUMP et al.
• Court: Alabama Supreme Court

Page 424

82 So.2d 424

263 Ala. 346

Mildred CASEY, v. Matt KRUMP et al.

1 Div. 628.

Supreme Court of Alabama.

Sept. 15, 1955.

J. Conner Owens, Jr., Bay Minette, and G. Ernest Jones, Birmingham, for appellant.

John Chason, Bay Minette, and Johnston, McCall & Johnston, Mobile, for appellees.

STAKELY, Justice.

This is a suit brought in equity by Matt Krump and Herbert Krump (appellees) against Mildred Casey (appellant) to cancel and remove a deed as a cloud upon the title to lands of the complainants.

The grounds for relief are (1) that on the 5th day of January 1949, the purported date of execution and delivery of the alleged deed, the grantor Nic Krump was of unsound mind and incapable of executing and delivering a valid conveyance of the lands embraced therein, of which facts the respondent well knew, (2) that the document purporting to be a deed of conveyance from the grantor Nic Krump to Mildred Casey dated January 5, 1949, was not executed by Nic Krump nor by anyone authorized to bind him in the premises and (3) if mistaken as to the first two grounds, the original deed was a product of undue influence exercised by the respondent Mildred Casey upon Nic Krump, the grantor. It was further averred that the complainants are the owners and in possession of the lands described in the alleged deed.

The demurrer to the bill as last-amended was overruled. It should be observed that the bill in this case is not a statutory bill to quiet title. On the contrary it is a bill in equity to cancel and remove a deed as a cloud upon the title to complainants' land in their possession. In King v. Artman, 225 Ala. 569, 144 So. 442, it was said:

'The equity of the bill in this case is to cancel and remove a deed as a cloud upon the title of complainant * * *. It is not a statutory bill, lacking several essentials as such.'

In a bill to cancel a deed as a cloud upon the title it is not necessary, as contended by appellant, to allege peaceable possession of the land as required in a bill to quiet title under the statute. The bill is sufficient if it alleges that complainants are the owners of the land and in possession thereof. Low v. Low, 255 Ala. 536, 52 So.2d 218, 220.

In the case last cited it was said:

'Being in possession, when his right is to have an instrument which appears to be a deed cancelled as a cloud upon his title, the essentials of his bill stated in broad terms are the existence of an instrument which appears on its face to be valid and affects his title, but which is not so on account of matter not so appearing, so that it takes evidence other than that shown by the instrument to prove its invalidity. King v. Artman, 225 Ala. 569, 144 So. 442.'

See also Randolph v. Randolph, 245 Ala. 689, 18 So.2d 555.

Furthermore in a bill of the kind here under discussion there is no need to allege that there is no pending suit to test the title to the lands. In this connection in Bank of Henry v. Elkins, 165 Ala. 628, 51 So. 821, this court said:

'Independent of our statute for the quieting of titles and the determination of claims to real estate, courts of equity have jurisdiction to cancel and remove a specially described cloud upon the complainant's title, when the owner is in possession, and when the evidence of the alleged cloud is not void on its face, and extrinsic evidence is necessary to show its invalidity.'

In the last mentioned case it was further said:

'Had the bill been an effort to avail of the statutory system mentioned, then, of course, observation of the statutory requirement would have been essential, such as averments of peaceable possession, and that there was no suit pending to enforce or test the validity of the title, claim, etc. The demurrer was properly overruled.'

See also Forman v. Thomas, 202 Ala. 291, 80 So. 356.

Paragraph 4 of the bill as last amended contains the following allegation:

'That on the 5th day of January, 1949, the purported date of the execution and delivery of said document, a copy of which is attached to the original bill of complaint as Exhibit 'A', the said Nic Krump was of unsound mind, and incapable of executing and delivering said document as a valid deed of conveyance of said lands, of which facts the respondent well knew.'

The foregoing allegation is sufficient. Casey v. Krump, 260 Ala. 280, 69 So.2d 864; Cox v. Parker, 212 Ala. 35, 101 So. 657.

With reference to undue influence the allegations of the bill as last amended are as follows:

'6(a) * * * and if complainants are mistaken as to the facts alleged in Paragraphs 4 and 5 of the original bill, they charge in the alternative that at the time of the alleged execution of said instrument, a copy of which is attached to the original bill of complaint as Exhibit 'A', the said Nic Krump was an old man above 73 years of age, of feeble health in body and mind, and was under the dominion and influence of the respondent, then a young woman of approximately 34 years of age; and said respondent was the dominant party in said transaction, and the execution of said alleged conveyance was the result and product of undue influence exercised by the respondent over the mind of the said Nic Krump, and it was not the exercise of his free volition.'

The foregoing allegations as to undue influence are sufficient. Cox v. Parker, 212 Ala. 35, 101 So. 657; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278; Ross v. Washington, 233 Ala. 292, 171 So. 893.

It is argued that since the deed is sought to be cancelled upon the ground that Nic Krump was of unsound mind on the date of the deed which is alleged to have been executed and delivered and upon the further ground that such deed was never actually executed and delivered by the said Nic Krump, the allegation that the said deed was the result of undue influence exercised by Mildred Casey upon Nic Krump, is repugnant to the other allegations rendering the bill duplicitous. The allegations are in the alternative and not multifarious, the term usually applied with reference to bills. 30 C.J.S., Equity, § 233, pp. 683-684. The objection is not well taken. Wilkinson v. Wright, 228 Ala. 243, 153 So. 204; Gaines v. Stevens, 248 Ala. 572, 28 So.2d 789; Craig v. Craig, 219 Ala. 77, 121 So. 86; Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So.2d 507.

The court was not in error in overruling the demurrer to the bill of complaint as last amended.

The evidence is voluminous but we do not...