Flomerfelt v. Siglin

• Decision Date: 07 April 1908
• Citation: 155 Ala. 633,47 So. 106
• Parties: FLOMERFELT ET AL. v. SIGLIN ET AL.
• Court: Alabama Supreme Court

47 So. 106

155 Ala. 633

FLOMERFELT ET AL. v. SIGLIN ET AL.

Supreme Court of Alabama

April 7, 1908

Rehearing Denied June 18, 1908.

Appeal from Chancery Court, Cherokee County; W. W. Whiteside Chancellor.

Bill by William Siglin and another against Jacob D. Flomerfelt and others for partition of land, etc. From a decree overruling demurrers to the bill, defendants appeal. Affirmed in part reversed, rendered, and remanded in part.

The bill is filed by William Siglin and Mary E. Flomerfelt, as an individual and as administratrix of the estate of James A Flomerfelt, deceased, against the heirs of said James A Flomerfelt, deceased. The averments are that Siglin and Flomerfelt were tenants in common of a certain tract of land, which is particularly described in the bill; that on or prior to the 6th day of December, 1901, a part of said lands belonged to said James A. Flomerfelt in severalty, a part to Siglin in severalty, and a part to Flomerfelt and Siglin jointly; that on said day the said Siglin and Flomerfelt entered into an agreement whereby they each conveyed to the other an undivided one-half interest in all of said lands; and that upon making said conveyance they had an accounting, and it was ascertained and agreed that Flomerfelt was entitled to be paid the sum of $20,000 out of the proceeds of the sale of said lands and other things which are set out in the contract. The bill further avers the death of said James A. Flomerfelt, leaving complainant Mary E. Flomerfelt as his widow, and that she had been appointed and had qualified as administratrix of his estate; that he left no children, and that his heirs at law are his brothers and sisters and the descendants of the deceased sister, all of whom are made defendants to the bill; that the complainant Mary E. Flomerfelt, as administratrix, is entitled to $20,000 as personal assets of his estate; that she is entitled to dower as a widow in that part of the real estate which was owned and held by her husband as realty; that Siglin is entitled to one-half of the proceeds of the sale of said land, less the amount in cash which belongs to the estate of said Flomerfelt under the terms of said agreement. It also avers that the lands are incapable of division, and that it is not possible to allot and set apart the dower of the complainant Mary E. Flomerfelt, by reason of the fact that the interest of her husband is an undivided one. The prayer of the bill is for a sale of the lands for division, that the dower right of complainant Mary E. Flomerfelt may be ascertained and declared by the court, and also for reasonable attorney's fees for complainant's solicitors. Numerous grounds of demurrer were assigned to the bill, but only three points were pressed, which are as follows: (1) That the bill does not show an equitable conversion of any part of the interest of James A. Flomerfelt, deceased, of the lands in question into personal property. (2) That there is a misjoinder of parties complainant, in that Mary E. Flomerfelt as administratrix is joined with Mary E. Flomerfelt as an individual. (3) That the complainants are not entitled to any allowance for their solicitors in and about the filing of the bill and the sale of the lands for division.

Omitting the formal parts, the contract is as follows: "Whereas, the said Siglin and James A. Flomerfelt are together the owners of certain lots, parcels, and tracts of lands situated in Cherokee county, at and near Bluffton, and upon an adjustment and accounting between them it has been agreed and determined that they are equally interested therein, subject to the prior payment out of the proceeds of the sale to James A. Flomerfelt of the sum of $20,000, and in accordance with such agreement the parties hereto have executed to the other a conveyance of one-half of the undivided interest in and to said property: Now, therefore, in consideration of said conveyance each to the other, and in accordance with the agreement entered into upon such an adjustment and accounting, it is hereby mutually agreed and declared that the interest of the said parties in and to said lots, parcels, and tracts of lands and other property is as follows, to wit: That the said James A. Flomerfelt is entitled to receive from the proceeds of sale, when the land is sold, the sum of $20,000, and after the payment of said sum of $20,000 to the said Flomerfelt the remainder of said proceeds or of said property shall belong to and be equally divided between the said Siglin and Flomerfelt, share and share alike. In the event, however, said property should be sold for $40,000 or less, said Flomerfelt shall receive the sum of $15,000, and the balance shall be equally divided. If sold for more than $40,000 and less than $45,000 said Flomerfelt shall receive all of said proceeds in excess of $25,000, and the balance shall be equally divided between said parties. It is further agreed to and between said parties, in consideration of the aforesaid, that all of the parties shall endeavor to make sale of said property as soon as possible and at the most advantageous price obtainable: Provided, that neither of said parties shall authorize or consent to a sale at a price less than $45,000 without the written consent of the other party; that amount being the net minimum price agreed upon for the sale of the same."

Dortch, Martin & Allen, for appellants.

Knox, Acker & Blackmon, for appellees.

ANDERSON J.

In discussing equitable estates arising from conversion of real estate into personal and personal estate into real, Mr Pomeroy, in his valuable work on Equity Jurisprudence, says: "The whole scope and meaning of the fundamental principle underlying the doctrine are involved in the existence of a duty resting upon the trustees or other parties to do the specified act; for, unless the equitable 'ought' exist, there is no room for the operation of the maxim 'equity regards that as done which ought to be done.' The rule is therefore firmly settled that, in order to work a conversion while...