Cogburn v. Callier

• Decision Date: 16 April 1925
• Docket Number: 4 Div. 170
• Citation: 104 So. 330,213 Ala. 46
• Parties: COGBURN et al. v. CALLIER et al.
• Court: Alabama Supreme Court

104 So. 330

213 Ala. 46

COGBURN et al. v. CALLIER et al.

4 Div. 170

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Coffee County; W.L. Parks, Judge.

Bill in equity to quiet title to real estate by Henry Cogburn and others, and cross-bill by respondents Bessie N. Callier and others. From a decree for respondents, complainants appeal. Affirmed.

See also, 104 So. 328.

Defects in service of notice on nonresident infant defendants is not matter of which complainants can complain, where infants were before court and represented by properly appointed guardian ad litem, and even where no guardian ad litem is appointed none but infants can complain.

P.B Traweek and J.N. Ham, both of Elba, and Fleming & Yarbrough, of Enterprise, for appellants.

W.W. Sanders, of Elba, and James J. Mayfield, of Montgomery, for appellees.

SOMERVILLE J.

The original bill of complaint was filed by heirs of John A. Cogburn against the heirs of Lou A. Cogburn, his widow, now deceased, to quiet the title to certain lands that belonged to John A. Cogburn, and that were devised by him to his said widow for life, with remainder over to these complainants.

The respondents answered that the said widow seasonably dissented from said will, and took under the statutes, and that on May 18, 1920, pursuant to procedings in the probate court, that court rendered a decree confirming a report of commissioners appointed to set aside the homestead exemption to said widow, and duly allotting to her as homestead the lands here in controversy.

The respondents show that under that report and decree the widow took a fee-simple title to her lands; and that, she dying intestate, the lands have descended to these respondents. The answer is made a cross-bill, and it exhibits copies of all of the proceedings for the probate of the will, the widow's dissent, administration, and allotment of homestead exemptions. The relief prayed is for the establishment of respondents' title, and the recovery of rents from those in possession.

After this answer and cross-bill was filed, the complainants amended their bill of complaint by adding allegations designed to impeach the decree of the probate court, allotting homestead exemptions to the widow, for fraud in its procurement; and by adding a prayer for its nullification on that ground.

The allegations of fraud are, in substance, that the commissioners, after viewing the decedent's homestead, concluded that it was worth $3,000, and came to Elba and so reported their valuation to W.W. Sanders, Esq., who (it is alleged) was acting as attorney for R.M. Cogburn and these complainants; that thereupon Sanders "persuaded, advised, and influenced said commissioners to change their valuation from $3,000 to $2,000, which they accordingly did; that the homestead was in fact worth considerably more than $2,000, and but for the influence and advice of Sanders the commissioners' report would have appraised it at $3,000; and that therefore the report was fraudulently obtained, and the decree thereon was also fraudulent, in that they were obtained by the undue influence or persuasion and advice of Sanders.

This amendment to the bill of complaint was unquestionably a direct attack on the decree of the probate court allotting this land as a homestead exemption to the widow, Lou A. Cogburn. Friedman v. Shamblin, 117 Ala. 454, 466, 23 So. 821; Johnson v. Johnson, 182 Ala. 376. 385, 62 So. 706. The court had jurisdiction of the controversy thus presented, and a final decree thereon will be conclusive as to that issue on the parties to this suit.

It is to be observed that the only ground of attack in the bill of complaint upon the probate decree in question is that W.W. Sanders, Esq., unduly influenced and persuaded the commissioners to change their appraisal of the homestead value from $3,000 to $2,000, which, it is conceived, infects the decree with fraud, and requires its nullification. On this issue the burden of proof was on complainants.

We have examined with critical care all of the testimony bearing on the appraisal of the homestead by the three commissioners. It appears from their testimony that they tentatively agreed upon a valuation of $3,000, but after going to the office of Mr. Sanders, and discussing the matter with him, in the presence of the widow and R.M. Cogburn, they agreed upon a valuation of $2,000, and then and there framed their report so declaring. Two of the commissioners attribute their action to suggestions made by Mr. Sanders that the basis for valuation was what the land would bring if sold to pay the decedent's indebtedness; they stated also that they understood that on such a valuation the widow would get the land. The other commissioner attributed their action to Mr. Sanders' alleged suggestion that it was customary in such cases to appraise the homestead at $2,000. One of the commissioners, Teel, stated that neither the widow, nor R.M. Cogburn, nor Mr. Sanders, made any statement, or gave any intimation, that they desired the commissioners to appraise at $2,000.

Mr. Sanders testified that when the commissioners came to his office to make their report, no one informed him that the land was worth $3,000 or more; that he told them that in determining the value of land the inquiry would be what it was worth or what it would bring if offered to a person who wanted to buy and had the money to pay with; that they unanimously agreed on a valuation of $2,000; and that he did not directly or indirectly suggest, or influence them, in the valuations they placed upon the property of the estate.

It appears that the commissioners consulted Mr. Sanders on their own initiative, as they had a right to do; and we can see no impropriety in his stating to them, in response to their inquiry, what they say he told them. We are satisfied that he did not attempt to influence or mislead them in the matter, and that their conclusion was their own, though it may have been founded in whole or in part upon his idea as to the proper basis for valuation. The imputation of either fraudulent design, or fraud infected result, is entirely unwarranted, however mistaken the commissioners may have been in their reported appraisal of the homestead.

Nor can we escape the conclusion, from the whole record before us that R.M. Cogburn the father of these complainants, and their representative and spokesman throughout, was fully informed as to the nature, purpose, and effect of the widow's dissent from the will, and of her claim for homestead exemption, and of the appraisal and report of the commissioners; that he informed these complainants thereof; and that all of them approved, if they were not actually parties to, the plan of the widow to acquire a fee-simple title to the homestead, in order that she might give effect to her deceased husband's will, then under attack, by a testamentary disposition of her own in harmony therewith. That plan, and that expectation of theirs, was defeated by the untimely death of the widow before she had made a will.

The widow had a clear legal right to dissent from the will of her husband, and to claim her homestead exemption and other rights given to her by statute, and fraud cannot be predicated upon her exercise of those rights, in the absence of actual fraud...