Clyburn v. Toney
| Decision Date | 09 March 1944 |
| Docket Number | 7 Div. 769. |
| Parties | CLYBURN v. TONEY |
| Court | Alabama Supreme Court |
Roy D. McCord, of Gadsden, for appellant.
Joe Brown, of Gadsden, for appellee.
This appeal is by the complainant from a decree of the Circuit Court of Etowah County, rescinding, setting aside, vacating and annulling a deed executed by complainant on the 14th of March, 1940, to the defendant, reciting,
This conveyance clearly falls within the influence of § 15, Tit 20, Code 1940. In fact and law, on well settled principles the statute is to be read into the deed and the grantee in such a conveyance accepts "the same with the limitations of the statute written into it, and with full knowledge of the rights of the grantor, and the consequent defeasible character of the instrument." Bush et al. v. Greer, 235 Ala. 56, 177 So. 341; Heartsill v. Thompson, etc., Ala.Sup., 16 So.2d 507.
In respect to such conveyance, executed subsequent to the incorporation of this statute into the Code of 1923, "fraud is not an essential element of the * * * cause of action provided for in the statute and the proceedings, as the statute indicates, are to rescind the conveyance on statutory grounds, that 'a material part of the consideration * * * is the agreement of the grantee to support * * * the grantor, during life.' " Oglesby v. Thomas, Ala.Sup., 16 So.2d 320, 321.
It is not essential to the equity of the bill that complainant offer to do equity. If proceedings in equity are instituted by the grantor, in the event of the complainant's death, the right of action survives in favor of the successors in estate of the grantor. Heartsill v. Thompson, etc., supra.
The material allegations of the bill are admitted by the answer, and the soundness of the decree annulling the deed and reinvesting the title in the complainant is not questioned.
The defendant makes his answer a cross bill, and in the cross bill he asserts a claim for permanent improvement made in the years 1929, 1930 and 1932, more than eight years before the execution of the deed, and the...
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Jones v. Boothe
...want of an offer to do equity. Hipp v. McMurry, 263 Ala. 11, 81 So.2d 531; Cornelius v. Walker, 248 Ala. 154, 27 So.2d 17; Clyburn v. Toney, 245 Ala. 341, 17 So.2d 235; Heartsill v. Thompson, 245 Ala. 215, 16 So.2d There being no error to reverse, the decree is affirmed. Affirmed. LAWSON, S......
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Tolver v. Tolver
...been shown, this Court has allowed the grantor to revoke the transaction. See Heartsill, 245 Ala. 215, 16 So.2d 507; Clyburn v. Toney, 245 Ala. 341, 17 So.2d 235 (1944). In determining whether the trial court correctly construed the statute under the facts of this case, we first look to the......
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Cornelius v. Walker
...Ala. 341, 17 So.2d 235, was decisive of the question. Counsel for complainants (appellees) seems to be of the opinion that not only Clyburn v. Toney, supra, but Heartsill et v. Thompson, 245 Ala. 215, 16 So.2d 507, supports the ruling of the trial court. The trial judge who presided at nisi......
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McAdory v. Jones
...prosecuted to the same effect that the grantor himself could have done. Heartsill v. Thompson, 245 Ala. 215, 16 So.2d 507; Clyburn v. Toney, 245 Ala. 341, 17 So.2d 235; Woods v. Wright, 223 Ala. 173, 134 So. 865, and Johnson v. Chamblee, 202 Ala. 525, 81 So. The rule in that connection is t......