Drummond v. Drummond

Decision Date21 May 1936
Docket Number6 Div. 953
PartiesDRUMMOND et al. v. DRUMMOND et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill in equity by W.A. Drummond and others against Henry Drummond and others. From a decree overruling a demurrer to the bill respondents appeal.

Affirmed.

J.J Curtis, of Jasper, for appellants.

J.B Powell, of Jasper, for appellees.

THOMAS Justice.

This appeal is from a decree overruling the demurrer to the bill in equity.

The bill alleges that a suit was filed against I.F. Drummond by Josephine Drummond, as administratrix of the estate of Sam Drummond (killed by I.F. Drummond), which resulted in a judgment for plaintiff. On appeal to this court ( Drummond v. Drummond, 212 Ala. 242, 102 So. 112), with supersedeas bond by W.A. Drummond, John T. Banks, and L.A. Myers, ancestors of other of the complainants here, as sureties, the judgment was affirmed and rehearing denied on November 27, 1924. Execution was issued thereon, and the real estate described as the property of I.F. Drummond was levied upon and advertised for sale.

It is further alleged in the bill that complainants W.A. Drummond, John T. Banks, and L.A. Myers secured a loan from the Protective Life Insurance Company for $6,000 for the purpose of discharging such judgment and costs, and did pay said judgment and costs with the money so borrowed; that the loan was secured by a mortgage on real estate, the properties of these sureties. It is averred as to this, "that in order to secure the said loan from the said Protective Life Insurance Company the said W.A. Drummond, John T. Banks, deceased, and L.A. Myers, deceased, executed to the said Protective Life Insurance Company, a mortgage on their own real estate. Complainants further allege that in order to secure the said W.A. Drummond, John T. Banks, deceased, and L.A. Myers, deceased, the said I.F. (Freeman) Drummond executed to them a mortgage to secure them against any loss which they might sustain for and on account of paying off said judgment and borrowing said money for [from] the said Protective Life Insurance Company for the purpose of paying said judgment, the said mortgage being executed on, to-wit, the 2nd day of May, 1929"; that the defendant in judgment failed to pay and discharge the mortgage indebtedness to the Protective Life Insurance Company for the moneys so borrowed and paid; that said mortgage given by complainants and cosureties was foreclosed and the indebtedness of I.F. Drummond satisfied by that foreclosure; that "these complainants were forced to pay off and satisfy said mortgage of, to-wit, $6,000.00 with interest and cost of foreclosure, and that the estate of I.F. Drummond is due to these complainants the sum of to-wit, $6,500.00, on account of them having to pay off said mortgage and to satisfy said mortgage, and the loan secured thereby, which loan was to pay off the judgment as hereinabove referred to of the said I.F. Drummond. *** Complainants further allege that the said judgment against the said I.F. (Freeman) Drummond, deceased, was no part of their debt; that it was a debt of the said I.F. (Freeman) Drummond entirely and that they were merely sureties on the said supersedeas bond and paid off the said judgment as sureties on the said supersedeas bond, and thereby became entitled to be reimbursed out of any or all of the property owned by the said I.F. (Freeman) Drummond, and were entitled to have any and all of the property owned by the said I.F. (Freeman) Drummond, deceased, sold, and upon the payment of said judgment became subrogated to all the rights of the plaintiff to any lien that the plaintiff might have against any property owned by the defendant, the said I.F. (Freeman) Drummond, deceased."

It is further alleged "that said I.F. Drummond conveyed or attempted to convey to his wife substantially, if not all, of the property owned by him at said time. *** that there was no consideration for said deed to his said wife; that the said consideration therein named was simulated and fictitious; that the said conveyance was voluntary and without valuable consideration; that the said conveyance was executed with the intent to hinder, delay or defraud the plaintiff, Josephine Drummond, as administratrix, in the said suit in the collection of any judgment which she might recover against him; and that the said deed is therefore void as against these complainants and should be so declared; *** that there was no consideration passed from the grantee to the grantor of said conveyance by I.F. Drummond to his wife, Pearl Drummond, but that the same was voluntary and without consideration and executed after the said Josephine Drummond as administratrix filed the said suit against the said I.F. Drummond; *** that the said conveyance is therefore void as against them or as against the judgment which was paid off by W.A. Drummond, John T. Banks, deceased, and L.A. Myers, deceased."

The complaint, the supersedeas bond, judgment, execution and levy, and the deed to the wife by I.F. Drummond in the former suit are exhibited in aid of the bill. Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90. The prayer of the bill is for subrogation, cancellation of the deed, and foreclosure of the mortgage of I.F. Drummond to complainants.

The authorities on subrogation have been recently collected in Berry et al. v. Bankers Mortgage Building & Loan Association (Ala.Sup.) 168 So. 427, and Strickland et al. v. Carroll, 228 Ala. 498, 154 So. 109.

It is insisted by appellants that the statute of limitations as to actions and laches may be raised by demurrer when the bill shows on its face that the cause of action is barred by the statute of limitations or is offensive to the equity rules of staleness of demands. Such is the effect of our decisions. Wood v. Master Schools, Inc., et al., 221 Ala. 645, 130 So. 178; Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623.

The statute of limitations applies by special provision of statute to courts of equity, as well as to courts of law in the cases indicated in chapter 315, article 2, § 8955, Code. And actions for recovery of lands, etc., are by the statute barred in ten years, section 8943, unless extended by contract or special circumstances that may be applied. Section 8966, Code; Gill v. More et al., 200 Ala. 511, 76 So. 453.

A bill to set aside a fraudulent conveyance is held to be a suit for the recovery of land, and, in the absence of special circumstances, is governed by the ten-year statute of limitations. Van Ingin v. Duffin et al., 158 Ala. 318, 48 So. 507, 132 Am.St.Rep. 29.

Unless there are special circumstances avoiding laches (in equity) or the period of limitations, the rules apply and such special circumstances must be averred and proved. Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606; Woodlawn Realty & Development Co. v. Hawkins et al., 186 Ala. 234, 65 So. 183; Gayle et al. v. Pennington, 185 Ala. 53, 64 So. 572.

The averments of the bill will be aided by the several exhibits made a part thereof; and the rule for testing a demurrer--that the pleading challenged will be construed as to its averments most strongly against the pleader--will be applied. The bill was filed on April 10, 1935. The averments of the several documents exhibited and dates of material facts are that the suit against I.F. Drummond by Josephine Drummond as administratrix of the estate of Sam Drummond deceased, was brought on September 9, 1921, and judgment rendered therein against the defendant on October 2, 1923; the supersedeas bond executed and filed and suspension of judgment pending appeal to this court of date of October 23, 1924; and the judgment of affirmance rendered here in Drummond v. Drummond, 212 Ala. 242, 102 So. 112, on ...

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22 cases
  • Duncan v. Johnson
    • United States
    • Alabama Supreme Court
    • September 24, 1976
    ...214 Ala. 293, 107 So. 908, and the question can be raised by demurrer. Ussery v. Darrow, 238 Ala. 67, 188 So. 885; Drummond v. Drummond, 232 Ala. 401, 168 So. 428. 'The following statements, omitting cases cited, are found in Salvo v. Coursey, 220 Ala. 300, 124 So. 874, "The rule of laches ......
  • Williams v. Kitchens
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    • August 30, 1954
    ...27 So.2d 1; Woods v. Sanders, 247 Ala. 492, 25 So.2d 141; Van Antwerp v. Van Antwerp, 242 Ala. 92, 100(25), 5 So.2d 73; Drummond v. Drummond, 232 Ala. 401, 168 So. 428; Miles v. Rhodes, 222 Ala. 208, 131 So. 633; Van Ingin v. Duffin, 158 Ala. 318, 48 So. 507; Washington v. Norwood, 128 Ala.......
  • Spragins v. McCaleb, 8 Div. 957.
    • United States
    • Alabama Supreme Court
    • April 13, 1939
    ...Sections 6522, 8955, Code. There may be collateral relief relating to real estate which would extend the limit to ten years. Drummond v. Drummond, supra. It not contended by appellants that this judgment should be reversed if we have correctly declared and interpreted the foregoing principl......
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    • Alabama Supreme Court
    • May 13, 1949
    ... ... justifiable absence of notice, or some other legal excuse in ... respect to laches. Drummond ... [40 So.2d 703.] ...          v ... Drummond, 232 Ala. 401, 168 So. 428; James v. James, ... 55 Ala. 525(6); Martin v. Branch Bank ... ...
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