Chambless v. Kennamer

• Decision Date: 18 March 1926
• Docket Number: 8 Div. 841
• Citation: 214 Ala. 293,107 So. 908
• Parties: CHAMBLESS et al. v. KENNAMER et al.
• Court: Alabama Supreme Court

107 So. 908

214 Ala. 293

CHAMBLESS et al. v. KENNAMER et al.

8 Div. 841

Supreme Court of Alabama

March 18, 1926

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Milo Moody, of Scottsboro, for appellants.

Proctor & Snodgrass and John B. Tally, all of Scottsboro, for appellees.

GARDNER J.

By this bill complainants seek to have the title to certain lands therein described vested in them as next of kin and heirs at law of Nancy Derrick, nee Nancy Thomas. The demurrers of respondents taking the point that the bill was barred by laches having been sustained; complainants have prosecuted this appeal for a review of the decree on demurrer.

From the bill it appears the land was at one time a part of the estate of W.C. Thomas (the father of Nancy Derrick), and was sold by the administrator of said estate, W.W. Derrick, the husband of Nancy bidding in the lands for his wife, the purchase money therefor being paid by said Nancy Derrick giving credit to said administrator for such part of her distributive share of the estate of her father; that on June 12, 1893, said administrator, as such, executed this deed to the land to W.W. Derrick, the husband of Nancy, "by mistake or inadvertence, when the deed should have been executed to Nancy L.E. Derrick." A few months thereafter, on September 6, 1893, Nancy Derrick died leaving no lineal descendants, the complainants being next of kin as her nephews and nieces, and the husband continued to occupy the land to the time of his death in 1924. W.W. Derrick subsequently remarried, and his widow now claims her dower interest in the land. The deed was never recorded, and the bill, as amended, alleges ignorance on the part of complainants that the deed was executed in the name of the husband, or that he was holding the land otherwise than by his right of courtsey and that the husband had told them at his death the land "would revert to them."

It is to be observed that relief is sought against a transaction occurring more than 30 years before the filing of this bill placing the burden upon complainants by this bill to excuse so long a delay. Henley v. Masonic Temple Ass'n, 94 So. 300, 208 Ala. 371; First Baptist Church (Col.) v Stokes (Ala.Sup.) 107 So. 76.

The equity of the bill rests upon the doctrine of a resulting trust. Its averments are consistent with the hypothesis that the wife had full knowledge as to the manner of the execution of the deed to the husband and acquiesced therein. On demurrer, in the absence of allegation to the contrary, it must be assumed that such was the case. Fowler v. Ala. I. & S. Co., 51 So. 393, 164 Ala. 414. Complainants claim through the wife. The right of the wife to file the bill arose upon the execution of the deed in June, 1893, and from that time the statute of limitations began to run. There is no averment of fraud or concealment of facts as to the wife, and, as just noted, she is here assumed to have had full knowledge. The following quotations here pertinent were noted with approval in Ala. Coal Co., v. Gulf Coal Go., 54 So. 685, 171 Ala. 544:

"As a party is generally charged with the laches of his privies, *** it follows that knowledge of an ancestor will be imputed to an heir. *** The knowledge of others who might have sued, but did not, may raise the

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