Draper v. Sewell
| Decision Date | 18 August 1955 |
| Docket Number | 7 Div. 274 |
| Citation | 263 Ala. 250,82 So.2d 303 |
| Parties | Jerry M. DRAPER et al. v. Louise Draper SEWELL. |
| Court | Alabama Supreme Court |
Young, Aird & Young, Anniston, for appellants.
Wm. C. Bibb, Anniston, for appellee.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, dismissing appellants' bill of complaint. The bill seeks a sale for division among joint owners and tenants in common of a certain city lot and house located thereon which cannot be equitably divided without a sale for division. Appellee's answer to the bill avers that she has a fee simple title to the property.
The evidence was heard ore tenus by the trial judge. His findings of fact and conclusions of law are substantially as follows: The property which is the subject matter of this litigation constituted all the real property owned by John H. Draper who died intestate on November 18, 1934, leaving surviving him as his sole heirs at law his widow, Sue C. Draper, one daughter, Louise Draper Sewell, the appellee in this cause, and two minor grandchildren, Jerry M. Draper (born October 2, 1924) and Robert M. Draper (born July 27, 1926). These grandchildren, sons of a deceased son of John H. Draper, are the appellants here.
The judge further found that the property constituted the homestead of John H. Draper; that at the time of the death of John H. Draper, A. P. Agee held a mortgage on the said property on which was due a balance of approximately eight hundred dollars; that said mortgage was executed by John H. Draper and his wife, Sue C. Draper, in 1922 to secure a debt owed to A. P. Agee; that subsequent to the death of John H. Draper, Sue C. Draper paid off the mortgage and that A. P. Agee on January 7, 1935, assigned and transferred the mortgage to her; that on November 13, 1937, Mrs. Sue C. Draper transferred and conveyed said mortgage to the appellee, Mrs. Louise Draper Sewell; that on January 24, 1938, the appellee foreclosed the mortgage and as authorized by its terms, became the purchaser at the foreclosure sale and on the same date conveyed to Mrs. Sue C. Draper a life estate in the property, reserving to herself the remainder in fee simple; that some three or four years prior to the death of Mrs. Sue C. Draper on January 9, 1954, the appellants acquired knowledge of the fact that the appellee was claiming adversely to their interest in the property by reason of the foreclosure of the Agee mortgage; that appellants did not offer to pay their proportionate part of the consideration paid to A. P. Agee, as aforesaid, prior to the filing of the bill in this cause on January 22, 1954, and that the offer to do so made in the bill in this cause was not made within a reasonable time after they knew that the appellee claimed to hold adversely to them and knew or should have known the true state of the legal title; that by their delay the appellants are barred from now asserting any interest in and to the said property, and that the bill of complaint should be dismissed.
The assignments of error made by the appellant are as follows:
'1. For that the trial court erred in its final decree of October 11, 1954, dismissing complainant's bill of complaint.
'2. For that the trial court erred in its finding of fact and conclusions of law as contained in the final decree entered in this cause on the 11th day of October, 1954.
'3. For that the findings of fact by the trial court as contained in the final decree are unsupported by the record evidence in this cause.
'4. For that the finding contained in the final decree of court, 'That three or four years prior to the death of Mrs. Sue C. Draper, who died January 9, 1954, the complainants acquired knowledge of facts sufficient to put them on inquiry as to the true state of the title of said property and at the said time acquired knowledge of the fact that the respondent was claiming adversely to their interest therein by reason of the foreclosure of the Agee mortgage,' is unsupported by the record evidence in this cause.
The following findings are established without dispute: John H. Draper died intestate in 1934 owning in fee simple the property here in question, subject to a mortgage which he and his wife had executed in favor of A. P. Agee in 1922. This property constituted all the real estate owned by said John H. Draper. He left surviving him as his only heirs at law the persons noted in the finding by the judge, above. The transactions which took place subsequent to the death of John H. Draper in relation to the Agee mortgage,--its acquisition by the widow Mrs. Draper, the transfer of same to the appellee, the foreclosure of same and the purchase by appellee at the foreclosure sale and the transfer or conveyance of the life estate to Mrs. Draper, are matters of record. The mechanics of these transactions are not in controversy but their effect is disputed.
We first direct our attention to the effect of the acquisition of the Agee mortgage by the widow, Mrs. Draper. On the death of her husband, Mrs. Draper became a life tenant of the property. By her purchase of the Agee mortgage Mrs. Draper became the holder of an outstanding incumbrance on the property in addition to the life estate which she already possessed. What was said in the case of Ward v. Chambless, 238 Ala. 165, 189 So. 890, 893, is applicable to the factual situation here:
.
Mrs. Draper, being the legal holder of the mortgage and the debt secured thereby, could make a valid transfer of same. This she did by means of an instrument dated November 13, 1937, in which she conveyed and transferred to the appellee 'that certain mortgage together with the indebtedness secured thereby' and in addition thereto all her 'right, title, interest and claim in and to the real estate described in said mortgage.' By means of this instrument, the appellee became subrogated to the rights and interest of Mrs. Draper.
The appellants contend that there was no consideration for the mortgage transfer from Mrs. Draper to the appellee and that the same is, therefore, void as to them and that the doctrine of subrogation and contribution does not apply. We cannot agree with this contention. The transfer itself recites as consideration, 'the sum of five dollars ($5.00) and other good and valuable consideration.' In addition thereto, it is undisputed that immediately on foreclosure sale of the property, the appellee who purchased at the foreclosure sale, conveyed a life estate therein to Mrs. Draper. Also, there is undisputed evidence showing that Mr. Draper lived without charge to her at the home of the appellee for a period of time in excess of fifteen years.
We next direct our attention to the effect of the foreclosure of the mortgage and the purchase of the property at the foreclosure sale by the appellee. We said in the case of Salter v. Odom, 240 Ala. 462, 199 So. 687, 688:
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