Compton v. Compton

• Decision Date: 18 November 1937
• Docket Number: 2 Div. 101
• Citation: 177 So. 900,235 Ala. 174
• Parties: COMPTON et al. v. COMPTON et al.
• Court: Alabama Supreme Court

177 So. 900

235 Ala. 174

COMPTON et al. v. COMPTON et al.

2 Div. 101

Supreme Court of Alabama

November 18, 1937

Rehearing Denied Jan. 13, 1938

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Suit by J.H. Compton and others against R.W. Compton, Lulie Hays Westbrook, and others, wherein a cross-bill was filed by named respondents. From an adverse decree, cross-complainants appeal.

Affirmed.

Thos H. Boggs, of Linden, for appellants.

S.W Compton, of Linden, and Crosland & Crosland, of Montgomery for appellees.

FOSTER Justice.

This is a suit in equity between the heirs at law of R.J. Compton, deceased, for the partition or sale of the lands of decedent.

The parties made an issue as to advancements, and the chief controversy resulted from that issue. Certain portions of the land were partitioned in kind by a decree of November 12, 1935, and the balance sold for division and the sale confirmed by decree of December 16, 1935. The partition and the sale were made and confirmed without decreeing on the subject of advancements, but the rights of heirs in said partition and sale were expressly made subject to such decree as should be rendered in which that issue should be determined. That issue did come on for hearing. The court heard all the evidence on the subject and rendered a final decree on November 11, 1936. It was later modified in some minor respect. That decree as modified is the subject of this appeal.

The court found from the testimony and exhibits that the property and money shown to have been paid by decedent to the heirs were not made and intended as advancements to them, but were made as gifts or as loans, which had been repaid to him before his death. Some of the transactions occurred some forty-five years before the hearing, and forty years before R.J. Compton died. Many witnesses testified to many facts and circumstances, and much of it was disputed, which was material on the issues. In addition, a large number of documents and papers and an account book were introduced in evidence and noted on the submission as evidence and mentioned in the decree of the court, but are not in the transcript nor otherwise before us. There were several occasions when the court sat and heard evidence and gave much care to the trial as is clearly shown.

We have also examined the evidence set out in the record, not including of course the exhibits.

For two well-settled reasons we cannot reverse the decree on the issues in question. One is that the witnesses were examined orally before the presiding judge, and the evidence is conflicting on the facts, and inferences. The finding is amply supported by some aspects of the evidence.

The other reason is that we will not reverse the trial judge on the facts when a substantial portion of the evidence which was noted and considered in arriving at the conclusion is omitted from the transcript. Wood v. Wood, 119 Ala. 183, 24 So. 841; Taylor v. Hoffman, 231 Ala. 39, 163 So. 339; Patton v. Endowment Department of A.F. & A.M., 232 Ala. 236, 167 So. 323, and cases there cited.

The certificate of the clerk to the transcript that it is all the evidence must be taken in the light of the note of testimony and decree of the court referring to the exhibits, as well as the transcript of the evidence to the same effect. Patton v. Endowment Department of A.F. & A.M., 232 Ala. 236, 167 So. 323.

We have not overlooked the fact that appellees contend that the settlement of the estate by the administration and distribution of the personalty after paying the debts owing was at least as to advancements in personalty conclusive against the right to make such a claim on the division of the realty. In the first place, the record of such administration is not here shown. The final decree was introduced in evidence, but it is not set out in the record. The cross-bill alleges that no accounting was had on the settlement with respect to advancements, and the late administrator so testified. It is not necessary that we interpret section 7380 et seq., Code, in this respect, since we think the conclusion of the trial court on the evidence as to such advancements should not be disturbed. That decree shows that it was not predicated on that legal contention, though...