Fanning v. Fanning

• Decision Date: 24 January 1924
• Docket Number: 7 Div. 434.
• Citation: Fanning v. Fanning, 210 Ala. 575, 98 So. 804 (Ala. 1924)
• Parties: FANNING v. FANNING.
• Court: Alabama Supreme Court

98 So. 804

210 Ala. 575

FANNING v. FANNING.

7 Div. 434.

Supreme Court of Alabama

January 24, 1924

Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.

Bill in equity by Alfred Fanning against Ada Fanning for declaration and enforcement of a trust, etc. From a decree for respondent, complainant appeals. Reversed and remanded.

Lapsley & Carr, of Anniston, for appellant.

Blackwell & Bibb, of Anniston, for appellee.

SAYRE J.

Alfred Fanning entered into a written contract with E. L. Martin for the purchase of a vacant lot in the city of Anniston. Payments of the purchase money were completed in 1905-such payments being made by Alfred, according to the preponderance of the evidence-after which a deed was executed conveying the lot to Ada Fanning, wife of Alfred. This was done during one of Alfred's numerous temporary absences from home, on the suggestion of the wife, and without the knowledge or consent of Alfred. However, very soon thereafter-within two or three months-Alfred was advised of what had been done; but he raised no objection and allowed the title to remain in its status quo until he filed this bill in April, 1921. Meantime the Fannings continued to live together as man and wife on the property, which was improved after purchase, until a short time before this bill was filed, when Ada moved away to Ohio, leaving Alfred, with their young children, in possession. Then Alfred filed this bill, praying that the deed to Ada be canceled and the title vested in him; in other words, that a trust for his benefit be declared and enforced in the property. On final hearing on pleadings and proof complainant's bill was dismissed.

On the facts we hold that the transaction in question operated to vest title in defendant as trustee sub modo for complainant that is, that the parties had no intention to separate the legal title from the beneficial use, but defendant obtained the title by an unconscientious act, in violation of complainant's rights and wishes, and so by a fraud in law, substantially as averred in that alternative of the bill added by amendment, thus acquiring title to the property as constructive trustee for complainant. Butts v Cooper, 152 Ala. 375, 44 So. 616.

Staleness or laches is founded upon acquiescence in the assertion of adverse rights and undue delay on complainant's part in not asserting his own, to the prejudice of the adversary party. Treadwell v. Torbert, 122 Ala. 300, 25 So. 216, and the cases cited to Zeigler v. Zeigler, 180 Ala. 251, 60 So. 810. The lapse of time is, of course, an important element; but there are others to be considered. In the present case two considerations conspire to excuse complainant for his delay in filing this bill: (1) The marital relation between the parties, so long as cohabitation continued, may well have excused complainant from proceeding against his wife ( Haney v. Legg, 129 Ala. 619, 30 So. 34, 87 Am. St. Rep. 81; Zeigler v. Zeigler, supra; 4 Pom. Eq. Jur. [4th Ed.] § 1452); (2) complainant was in possession, along with his wife, and could afford to wait until his claim of ownership was attacked, as, for example, by a suit to quiet title. Fowler v. Alabama Iron & Steel Co., 164 Ala. 414, 51 So. 393; Woodlawn Realty & Development Co. v. Hawkins, 186 Ala. 234, 65 So. 183; 4 Pom. Eq. Jur. (4th Ed.) § 1454. In Ogletree v. Rainer, 152 Ala. 467, 44 So....