Fowler v. Fowler

• Decision Date: 14 April 1921
• Docket Number: 8 Div. 282
• Citation: 88 So. 648,205 Ala. 514
• Parties: FOWLER v. FOWLER et al.
• Court: Alabama Supreme Court

88 So. 648

205 Ala. 514

FOWLER v. FOWLER et al.

8 Div. 282

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Marshall County; W.W. Harralson, Judge.

Bill by John A. Fowler against Bingham Fowler and others for the sale of land for division. Decree for respondents, and complainant appeals. Reversed and remanded.

John A Lusk & Son, of Guntersville, for appellant.

Isbell & Scott, of Ft. Payne, for appellees.

GARDNER J.

In the original bill it was averred that complainant owned by purchase a one-half undivided interest in the 40 acres here sought to be sold for division, and the cross-bill sought to have the title thus acquired declared as held in trust for the respondents; the effect of the decree of the court below being to award this relief. This is the only question here presented for consideration.

We will briefly state the conclusions which we have reached from a study of the evidence, without entering into a discussion thereof. The father of complainant, with his family, at the time of his death in June, 1883, resided upon 120 acres of land, adjoining the 40 acres here in controversy. He had contracted with one Duckett for the purchase of this 40 acres, but we are of the opinion he had paid no part of the purchase money; nor had he been placed in possession, and so far as this record discloses the contract was verbal. He was in bad health, and unable to do much work. There is evidence tending to show that he told complainant that if he would stay there and work and pay for the place he might have it. There were twelve children, complainant being the oldest--23 or 24 years of age--all the others being minors, with the possible exception of one girl who, the testimony shows, was "about 21 years old." Complainant and his mother Martha Fowler, after the father's death, assumed the management of the farm. In October, 1883, a deed to this 40-acre tract was executed by Duckett, and was made to John A. Fowler [complainant] and his mother, Martha Fowler. He continued to reside with his mother upon the home place for a period of 2 years after the execution of this deed, when he married and moved on this 40-acre tract, where he continued to reside for a period of 12 years, at the end of which time he moved across the county line, about a half mile therefrom but has continued to cultivate the land. The mother died some 6 years previous to the filing of this bill.

It is very uncertain as to when the purchase money was paid, but we are inclined to the view that the major portion of it must have been paid subsequent to the execution of the deed. It was paid out of the income from the home place. The presumption arises from the conveyance offered in evidence that it fully speaks the truth, and this presumption must prevail until the contrary is established beyond reasonable controversy. The burden of removing such presumption rested upon the cross-complainants. Lehman v. Lewis, 62 Ala. 129.

To establish a resulting trust the cross-complainants must show, not only that the consideration moved from them, but that it was paid contemporaneous with the purchase. Preston v. McMillan, 58 Ala. 84; 3 Pom.Eq.Jur. § 1037.

It must be recalled that if a resulting trust could be enforced against the complainant here, it could also have been enforced against complainant and his mother during her lifetime. As the widow, Martha Fowler, had the right to continue to occupy the homestead until the assignment of her dower interest, or until the homestead was set apart as exempt, she had the right to manage and control the same. The complainant had reached manhood's estate, and was free to labor for himself; while the widow was entitled to the services of the minor children, the cross-complainants here. They were maintained at the homestead, and the mere fact they assisted in the farm work by no means gave them title to all the proceeds of that produced. Not only does the proof fail to show that the purchase money was paid by the cross-complainants as a part of the original transaction, but it likewise fails to show that cross-complainants in fact paid any portion of the purchase price. It needs no discussion...