Davis v. Davis

• Citation: 211 Ala. 317,100 So. 345
• Decision Date: 14 February 1924
• Docket Number: 4 Div. 99.
• Parties: DAVIS ET AL. v. DAVIS.
• Court: Alabama Supreme Court

100 So. 345

211 Ala. 317

DAVIS ET AL. v. DAVIS.

4 Div. 99.

Supreme Court of Alabama

February 14, 1924

Rehearing Denied May 22, 1924.

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

Bill in the nature of a bill of review by Pearlie Davis against J. W Davis and others. From a decree overruling demurrer to the bill, respondents appeal. Affirmed.

W. W Sanders, of Elba, for appellants.

Fleming & Yarbrough and J. N. Ham, all of Enterprise, for appellee.

MILLER J.

This is a petition or bill filed by Pearlie Lee Davis, widow of C Davis, deceased, against J. W. Davis and others, children of the decedent, who were over 21 years old at the time of his death, and seeks to have set aside as void for fraud a decree rendered in a cause wherein J. W. Davis and the other heirs of decedent, over 21 years of age, were complainants and she and her minor child were defendants. It appears this decree orders 80 acres, which is a part of the land of the decedent, sold for division among the joint owners, the heirs of decedent, and it sets apart 40 acres of his land as a homestead for petitioner, his widow, and his minor child.

J. W. Davis and others demurred to this petition, which demurrer was overruled by the court; and this appeal is prosecuted by them from that decree, which is the error assigned.

This cause has been in this court before on petition for writ of mandamus. See Ex parte Davis et al., 209 Ala. 126, 95 So. 363.

The defendants insist their demurrers to the bill or petition should have been sustained because the decree was rendered on February 1, 1921, the petition was filed March 1, 1921, but it was not called to the attention of the court until March 5, 1921, and this was more than 30 days after the decree was rendered, and the court, under the act in General Acts 1915, p. 708, § 3, has no control over the decree. They refer to Howard v. Ala. Fuel & Iron Co., 208 Ala. 500, 94 So. 531, to sustain their position. Neither this act nor the above-cited authority of Howard v. Ala. Fuel & Iron Company, has any application to this cause. Ex parte Davis, 209 Ala. 126, 95 So. 363.

This is an original bill in the nature of a bill of review. It states "the decree and proceedings which led to it, with the circumstances of fraud on which it is impeached." McDonald v. Pearson, 114 Ala. 630, 21 So. 534. These averments are necessary to give it equity. Graves v. Brittingham, 209 Ala. 147, 95 So. 542; Evans v. Wilhite, 167 Ala. 587, 52 So. 845. The main purpose of this petition or bill is to impeach for fraud that final decree rendered in the cause. It seeks to have the decree declared void for fraud in its procurement by extrinsic facts and collateral circumstances not appearing in the record.

A bill to impeach a decree for actual fraud in its procurement by analogy to a bill of review must be filed within three years after the decree is rendered; but infants and persons of unsound mind have three years after the termination of their respective disabilities. Section 3178, Code 1907; Gordon v. Ross, 63 Ala. 363; Graves v. Brittingham, 209 Ala. 147, 95 So. 542.

It avers the land involved in said cause did not exceed 120 acres. C. Davis, her husband, a resident of this state, died seized and possessed of this land on April 5, 1920, which is described as follows: S.E. 1/4 of N.E. 1/4, S.W. 1/4 of N.E. 1/4, and S.E. 1/4 of N.W. 1/4 of section 25, township 3, range 19, in Coffee county. The three 40's join, lie in one body, and were used by the decedent at the time of his death as a homestead. It did not exceed in area 160 acres or in value $2,000; and it constitutes all the real estate owned by this decedent in this state at the time of his death. The decedent left a widow, the petitioner, and one minor child. Under these averments, if true, the entire 120 acres of land, under sections 4198 and 4196 of the Code of 1907, should have been set apart as a homestead to the widow and minor child of the decedent; and the title to the entire 120 acres would vest in them absolutely. Section 4198, Code 1907.

Section 4196 of the Code of 1907 provides "such homestead" of a decedent-

"shall not be sold or partitioned by order of any court until the death of the widow and the youngest child is of age, except by the order of the chancery court for reinvestment with the consent of the widow in writing, if living."

Yet, under the averments of this petition, the children of decedent, of age at his death, have secured a decree of sale for division of 80 acres of this homestead, in which they own no interest or title under the facts averred.

If the application for the personal property and homestead exemptions is made and claimed under section 4224 of the Code of 1907 by the widow, then it provides:

"And in estimating the value of such property or any part thereof, if the same be held in pledge or under mortgage or other lien or incumbrance created prior to the death of the decedent, such incumbered property must be valued at only the excess of its value over and above the sum of such liens or other incumbrances."

The petitioner, the widow, avers that J. W. Davis, after the original bill was filed in this cause, representing himself and the other complainants, came to her and by deception, misrepresentation, or fraud practiced on her, prevented her from defending said cause. He, for himself and for them, proposed making a settlement with her in a friendly manner, and told her that he and the other heirs named as complainants would make her deeds to one 40 acres, naming it, if she would relinquish and release her dower to the other 80 acres; and they would convey all their rights to her and her minor child in the 40 acres, and would never interfere with her rights in the same, and she further avers:

"That said J. W. Davis brought to her an instrument

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