Ellis v. Drake

• Decision Date: 19 May 1921
• Docket Number: 6 Div. 195
• Citation: 206 Ala. 145,89 So. 388
• Parties: ELLIS v. DRAKE.
• Court: Alabama Supreme Court

89 So. 388

206 Ala. 145

ELLIS v. DRAKE.

6 Div. 195

Supreme Court of Alabama

May 19, 1921

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by James Ellis against Alberta Drake to restrain dispossessing him under an execution in ejectment, and declare a trust in certain lands, and for general relief. From a decree sustaining demurrers to the bill, complainant appeals. Reversed and remanded.

Ellis &amp Matthews, of Birmingham, for appellant.

Ritter & Wynn, of Birmingham, for appellee.

McCLELLAN J.

Appeal from decree sustaining respondent's (appellee's) demurrer to complainant's (appellant's) bill. The bill was filed on December 2, 1919, by the appellant against the appellee, his daughter. It is averred in the bill that in the year 1900 the appellant entered into a contract with C.R and E.C. Nicholson for the purchase of certain realty; that he alone performed the contract and paid the entire purchase money, and thereupon became entitled to a conveyance of the property; that immediately thereafter (1900) he went into the open, notorious, continuous adverse possession of the property, has ever since held it, annually listed it for taxation and paid the taxes thereon, and lived on the land claiming it as his own; and that he has expended large sums of money in the improvement of the premises. In paragraph 4 substituted by amendment, it is averred:

"(4) That complainant is an ignorant negro, unacquainted with the formalities and usages of law, and that after he had performed his contract for the purchase of said lands by paying the entire purchase price thereof as agreed upon he was fraudulently induced by E.C. Nicholson, one of the grantees in the contract of sale, to have said deed made to the defendant herein. That the fraud of said Nicholson consisted in this: That she represented to this complainant that the deed which she delivered to him conveyed the land to him, and that when he recorded said deed that he would be the owner of said land, while as a matter of fact said deed conveyed the legal title to said lands to the defendant herein. That your complainant relied upon said false representations and believed them to be true, and was thereby caused to accept said deed and record the same."

It is further averred that because he paid the entire purchase money for the property, and that no part thereof was paid by this respondent, his daughter, he is in fact the equitable and beneficial owner of the property, and that the respondent is and has been a mere naked trustee of the title to said lands to his use.

It is further averred that the respondent on, to wit, the 7th day of July, 1917, instituted and prosecuted to a successful result an ejectment suit against him in the circuit court of Jefferson county; that upon his appeal to the Supreme Court the judgment of the circuit court was affirmed on November 13, 1919, about 11 months before this bill was filed ( Ellis v. Drake, 203 Ala. 457, 83 So. 281; and that a writ of possession was ordered issued upon the judgment so affirmed.

The bill prays for an injunction to restrain the dispossession of the appellant through the process issuing on the judgment in the action of ejectment; that upon final hearing a decree will enter, declaring the equitable and beneficial title to the property to be in complainant, and that the trustee is only a trustee of the legal title for the use of complainant; that the respondent be required to execute a deed to the complainant; and that the enforcement of the judgment in ejectment will be permanently enjoined. In addition, there is a prayer for general relief.

In the mentioned action of ejectment the defendant (there) sought to have the cause transferred to the equity...