Duncan v. Johnson

Citation338 So.2d 1243
PartiesS. C. DUNCAN et al. v. Donald Richard JOHNSON et al. SC 1059.
Decision Date24 September 1976
CourtSupreme Court of Alabama

Stanford J. Skinner, Birmingham, for appellant Estelle W. Morgan.

Wallace, Ellis, Head & Fowler, Columbiana, for appellants S. C. Duncan, Woodrow Thomas and Paul Gilliam, Jr.

W. H. Collier, Jr., Birmingham, for appellees Donald Richard Johnson and James Milton Johnson.

LEIGH M. CLARK, Special Chief Justice. *

This is an appeal by the respondents from a decree in equity, rendered after July 3, 1973, the effective date of the Alabama Rules of Civil Procedure, in a case commenced and partly tried before said date. It was agreed by the parties and ordered by the court that the rules of procedure of equity cases prior to July 3, 1973, should govern the entire proceedings in the trial court.

According to the bill of complaint as last amended and the undisputed evidence in the case, on March 12, 1947, complainants-appellees, Donald Richard Johnson and James Milton Johnson, then minors, became the owners of a remainder interest in and to a seventy-three-acre tract of land in Shelby County, by virtue of a deed from their father, William T. Johnson, in which he reserved a life interest in the land. On or about January 10, 1949, Leroy Morgan, the now deceased husband of one of the respondents-appellants, Estelle W. Morgan, became owner of the life estate in and to the land by virtue of a deed from William T. Johnson purporting to convey the property in fee simple, which undisputedly it did not by reason of the outstanding remainder interest in favor of complainants-appellees.

There are references in the complaint and the evidence to negotiations between Mr. Johnson and Mr. Morgan relative to the abortive conveyance of the minors' remainder interest in the purported sale and purchase, including a possible mutual recission, but efforts along this line did not materialize. The evidence shows without dispute that in April-May 1949 the two composed their controversy or misunderstanding by Mr. Morgan's releasing Mr. Johnson from his warranty as to a fee simple title, in consideration of Mr. Johnson's satisfaction of the purchase money mortgage from Mr. Morgan for $1,500, representing one half the purchase price.

On February 11, 1950, Mr. Morgan filed a bill in equity in the Circuit Court of Shelby County, Case No. 3176, against complainants-appellees herein, then thirteen and seventeen years of age respectively, for a sale of the land for division of the proceeds of the sale. The bill of complaint alleged that the parties were joint owners or tenants in common of the land; that complainant owned 'an undivided 99/100 interest in the life interest' for the life of William T. Johnson, that each of the respondents owned a '1/200 undivided interest in the life interest' for the life of William T. Johnson and that each of the respondents owned a '1/2 interest' in the remainder. By an amendment to the bill of complaint of February 11, 1950, an area of 1.39 acres, particularly described in the amendment, was excepted from the property described in the original bill. The circumstances constituting the basis for the averment of respondent's ownership of a 1/100 life interest for the life of William T. Johnson and the amendment of the bill of complaint in Case No. 3176 excepting the 1.39 acres form one of the main areas of contest in this case and will be hereinafter discussed further.

According to the record, a copy of the bill of complaint in Case No. 3176 was duly served by the sheriff on each of the respondents. were Mr. Morgan, the complainant, and to represent them, who accepted the appointment and filed a general denial, and testimony in narrative form was taken before a commissioner. The only witnesses were Mr. Morgan, the complaint, and Mrs. Johnson, the mother of respondents, who as wife of respondents' father had joined in his deed of his life interest to Mr. Morgan but who at the time of the pendency of Case No. 3176 was divorced from Mr. Johnson. Both testified to the effect that the ownership of the real estate involved was as stated in the bill of complaint and that the property could not be equitably divided or partitioned among the joint owners or tenants in common without a sale. The deed from Mr. William T. Johnson to Mr. Morgan was introduced in evidence and was referred to by Mr. Morgan in his testimony as the conveyance by which he became 'the owner of a life interest in said lands during the natural life of William T. Johnson.' No reference was made in his testimony to the fact that the deed actually purported to convey title in fee simple. A typed copy of the deed whereby Mr. Morgan is said to have conveyed to each of the then minor Johnsons a 1/200 undivided interest in the life interest for the life of William T. Johnson was introduced into evidence in connection with the testimony of Mr. Morgan and on its face expressly reflected that it had been executed by Mr. and Mrs. Morgan and acknowledged by them before an Etowah County notary public on February 9, 1950. The deed recited a consideration of 'One and No/100, and other valuable considerations DOLLARS,' as paid by the then minor respondents and acknowledged by the grantors in the deed. Mrs. Johnson, the mother of the respondents in Case No. 3176, the complainants-appellees in this case, testified that in her opinion it was to the best interest of the minors that the land be sold for division among the joint owners. 1 She also testified that she and her husband were then divorced and that she was given the care and custody of the minor respondents. The guardian ad litem for the minor respondents, the present complainants-appellees, did not cross-examine either witness.

In Case No. 3176, the testimony was taken on March 13, 1950, and the cause was submitted to the court on the same day, or the following day, when a final decree was entered upon the pleadings and proof, granting complainant the relief prayed for in the bill of complaint as amended. In the decree the respective interests of the parties were determined as alleged in the complaint as amended. It was held that the property could not be equitably divided or partitioned among the joint owners without a sale, as alleged in the complaint, and a public sale was ordered to be made by the register after due publication. It was further decreed that the register conduct a reference 'as soon after said sale as may be convenient' to, inter alia, ascertain and report the value of the respective interests of the parties. The property was sold to Mr. Morgan, as the highest and best bidder, for the sum of $3,050. After the sale, a reference was conducted, and a report thereof was made on April 15, 1950, in which the value of the 1/200 interest of each of the respondents 'during the life of William T. Johnson was determined to be $7.75; the value of the remainder interest owned by respondents, $1,484.50; the value of the 99/100 interest of Mr. Morgan for the life of Mr. William T. Johnson was determined to be $1,550.00. Testimony in support of such valuations was furnished by Mr. Morgan and Mrs. Johnson. As a part of Mrs. Johnson's testimony, she said that complainant had agreed to convey to the two minor respondents the 1.39 acres excepted from the land sold for division pursuant to the amendment to the complaint, and had agreed to have 'one small house' moved onto said excepted tract, and to pay all court costs and attorney's fee in the case. She said that on that basis it was her opinion $1,500 would be the reasonable value of the remainder interest and the undivided life interest of the minor respondents. On cross examination by the respondents' guardian ad litem, her only testimony was, 'This is the best offer that I have been made.' Mr. Morgan corroborated Mrs. Johnson's testimony as to the value of the respective interests and his agreement to convey the minors the small tract of land and further testified that the respondents would have the right to use the well on the land sold in securing water. The reference was conducted on the same day the land was sold at public outcry, April 15, 1950. The sale and the report of reference were ratified and confirmed by the court on April 28, 1950. A Register's deed to Mr. Morgan for the property was executed the same day. A deed from Mr. Morgan and his wife in favor of complainants in this case conveying the mentioned 1.39 acres was executed on May 1, 1950. On May 12, 1950, Mr. Morgan conveyed his interest to the property in litigation to Mrs. Morgan, who has had a house built thereon in which she has lived ever since.

As a consequence of the proceedings in 1950, the register had $1,500, which she could not pay direct to the minors by reason of their minority. On May 5, 1950, the mother of the minors, filed a petition in the Circuit Court for the removal of the disabilities of nonage of James Milton Johnson, who had become eighteen years of age. The verified petition set forth the minor's interest in an undivided interest in the 1.39 acres referred to and the money on deposit with the register derived from the sale of land for division. The record shows that a copy of the petition was served on James Milton Johnson by the sheriff on May 8, 1950. The court granted the petition and removed the disabilities of nonage of James Milton Johnson on May 10, 1950, and on that date $750.00 was disbursed by the register by check made payable to him.

On May 23, 1950, the mother of the minors filed a petition in the probate court for letters of guardianship of Donald Richard Johnson. The guardian executed an appropriate bond, the letters of guardianship were granted, and on May 25, 1950, on petition of Mrs. Johnson, she was allowed to spend $100 per month from the estate of the minor for his maintenance, support and medical care which was ordered on June 15, 1950. The $750.00 in the register's account...

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