Danne v. Stroecker

• Decision Date: 20 December 1923
• Docket Number: 1 Div. 286.
• Parties: DANNE v. STROECKER ET AL.
• Court: Alabama Supreme Court

98 So. 479

210 Ala. 483

DANNE v. STROECKER ET AL.

1 Div. 286.

Supreme Court of Alabama

December 20, 1923

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by Adele Emily Danne against Gustave Albert Stroecker and others, to set aside a decree of sale of the probate court. From a decree sustaining demurrers to the bill complainant appeals. Reversed and remanded.

Frederick G. Bromberg, of Mobile, for appellant.

Smiths Young, Leigh & Johnston, of Mobile, for appellees.

SAYRE J.

Appellant filed this bill against Gustave Albert Stroecker, Catherine Arata, Lena Arata, and Ida Moore Arata, seeking to set aside as having been procured by fraud a decree of sale, made in the probate court, by which Stroecker and his coexecutor, Adolph Danne (since deceased), under the will of appellant's (complainant's) mother, were authorized to sell, and did sell, a certain piece of real property in the city of Mobile for the payment of alleged debts of deceased. Stroecker and Catherine Arata have not been brought in. Lena and Ida Moore Arata demurred to the bill as originally filed and as twice amended. Their demurrers were sustained, and complainant appeals.

At the sale made in pursuance of the decree in question, Catherine Arata became the purchaser, and the demurring defendants, it is averred, claim under voluntary conveyances from her. It will not be denied that in these circumstances they have only such title as their grantor had. So then, the questions presented are (1) whether the bill sufficiently charges fraud, and (2) whether, on the facts averred, Catherine Arata should be charged with notice of the fraud alleged.

1. It is averred, in substance, that deceased left no debts; that the debts for the payment of which the real estate was sold were the debts of Adolph Danne; that deceased left a large personal estate, much larger even than the amount of debts alleged in the petition for the sale of the realty; that Adolph Danne converted this property to his own personal use and that, in any event, there was no occasion or necessity for the sale of the realty, an interest in which had been advised to complainant. It is shown that no process was ever prayed or issued to bring complainant into the probate court, where she might have opposed the sale of her land, and it is averred that defendant Stroecker and his coexecutor, Adolph Danne, conspired to defraud complainant of the estate devised to her by procuring its sale for the payment of the alleged debts of deceased and exhibited to the probate court, and filed therein, "in final settlement" a paper writing purporting to witness an agreement between all persons interested for the settlement of the estate of deceased, signed by complainant along with the others, reciting the sale of the land, the payment of debts, and the distribution of the balance among the parties in interest, including the sum of $719.33, the receipt of which purports to be acknowledged by Adolph Danne and complainant for their joint use and in full of their interest in the estate. And it is averred that, so far as complainant is concerned, the instrument was a forgery; that she had no notice of the pendency of the administration, nor of the sale; that she took no part therein, and entered into no agreement with respect thereto, nor did she receive any part of the said fund. In sum, the averment is that the sale was the result of a conspiracy to defraud complainant. As excusing her delay in filing the bill, complainant avers that she has been from birth almost toally blind, that she is illiterate, dependent on the care of others, a nonresident of the county of Mobile, and had been ignorant of the proceedings...