Gilb v. O'Neill

• Citation: 142 So. 397,225 Ala. 92
• Decision Date: 26 May 1932
• Docket Number: 6 Div. 12.
• Parties: GILB ET AL. v. O'NEILL ET AL.
• Court: Supreme Court of Alabama

142 So. 397

225 Ala. 92

GILB ET AL. v. O'NEILL ET AL.

6 Div. 12.

Supreme Court of Alabama

May 26, 1932

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill to establish a trust by Winifred Gilb and another against John W. O'Neill and others. From a decree sustaining a demurrer to the bill and dismissing it, complainants appeal.

Reversed rendered, and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellants.

Harsh Harsh & Hare and Frank S. White, Jr., all of Birmingham, for appellees.

KNIGHT J.

It appears from the bill of complaint, as amended, that John W O'Neill, deceased, father of John W. O'Neill, one of the respondents, purchased the N.W. 1/4 of the N.E. 1/4 of section 2, township 18, range 2 west, in Jefferson county, under a decree of the probate court of Jefferson county, which directed the sale of said land for the payment of the taxes due thereon to the state and county for the tax year of 1890. On June 6, 1893, the judge of probate of said county executed to the said purchaser a deed conveying to him the said tract of land. Thereafter, on December 19, 1894, the said John W. O'Neill, deceased, "obtained a deed from R. M. Buck and wife, conveying to him all their right, title and interest in and to the N.E. 1/4 of the N.E. 1/4 of Section 2, Township 18, Range 2 West," in said county. It is also made to appear from the bill that the said R. M. Buck acquired said property from Montgomery & Wadsworth, a partnership, who in turn had acquired the same by virtue of a deed executed by the judge of probate of Jefferson county, on sale of said tract of land for state and county taxes. It is then averred in the bill, as amended, that "subsequent" to the execution of said two deeds the said John W. O'Neill, the first, went into possession of said property and made improvements thereon, and was seized and possessed of the property at the time of his death. It appears also that the said John W. O'Neill, the first, died intestate in February, 1896, leaving surviving him, as his only heirs at law, his widow, Winifred J. O'Neill, and five daughters, and one son, the respondent John W. O'Neill. Annie O'Neill, one of the daughters, died intestate, without issue. Mary O'Neill, another daughter, married Valentine Gilb, and died thereafter, intestate, leaving her husband and the two complainants as her only heirs at law and distributees. The date of the death of Mary O'Neill Gilb nowhere appears in the bill, but it does appear therein that she survived her father, and died prior to the year 1912; therefore her death occurred at some undefined period of time between the years 1896 and 1912. Nor do the dates of birth of complainants appear in the bill, and the bill seems to studiously avoid making this proper and needed averment, in view of the demurrers twice filed to the bill presenting the question of laches.

The complainants on two separate occasions amended their bill, and the last amendment, instead of averring directly and positively the ages of the complainants, which could have been done in a few words, gives the court this information only as to the ages of complainants: "Complainants allege that, at the time of the death of their mother, complainant Winifred Gilb was eight years of age, and complainant Margaret Snider was six years of age, and less than ten years have elapsed since the complainants attained their majority and before the commencement of this suit."

The bill as last amended avers that: "Subsequent to the death of said John W. O'Neill, the first, his widow and son, the respondent, John W. O'Neill and his five daughters above mentioned, continued in possession of said property, each claiming title in possession with the others as tenants in common under and through the said John W. O'Neill, the first. Such possession as the said John W. O'Neill had in and to the said property was in connection with the possession of his mother and sisters and these complainants, and in recognition of their interests as heirs and distributees at law of said John W. O'Neill, deceased."

After demurrer was sustained by the court to the bill as originally filed, the complainants, who are grandchildren of John W. O'Neill, deceased, and children of the deceased daughter, Mary O'Neill Gilb, amended sections 5 and 6 of their bill of complaint. In order to give a clearer view of the contention of complainants we will quote section 6 at length: "Your complainants further show that notwithstanding the facts above set forth, that on to-wit, the 19th day of October, 1912, the respondent John W. O'Neill, obtained a deed from Joe Bagley and wife Mandy Bagley, purporting to convey the land above described, which deed recited a consideration of $300.00, and is recorded in Volume 746 at page 152, Record Deeds, in the office of the probate judge of Jefferson County, Alabama; and on to-wit, the 9th day of October, 1912, the respondent John W. O'Neill, also obtained a deed from Amanda Hall, a widow, formerly Amanda Bagley, which deed also recited a consideration of $300.00, and purported to convey the lands above described, and is recorded in Volume 746 at page 159, Record of Deeds, in the office of the probate judge of Jefferson County, Alabama. Complainant alleges that while said John W. O'Neill and his wife Lizzie O'Neill are now claiming title to the property involved in this suit, under said deeds, they did not know of the existence of either of said deeds or that said John W. O'Neill and his wife Lizzie O'Neill claimed any right, title or interest in and to the property the title to which is involved in this suit, under the same, until subsequent to the 27th day of May, 1929, when they learned incidentally that said John W. O'Neill and wife Lizzie O'Neill had undertaken to sell the property above described to S. R. Benedict, W. E. Mitchell, A. C. Polk and George E. Blue, as herein more particularly set out, and did not know until subsequent to said date that either the said John W. O'Neill or his wife Lizzie O'Neill claimed any right, title or interest in and to said property except they knew that said John W. O'Neill claimed an undivided interest in said property as one of the heirs and distributees at law of the said John W. O'Neill, the first, and was entitled to the possession of said property along with the other heirs of said John W. O'Neill, the first."

It further appears from the bill as last amended that on the 15th day of February, 1923, the respondent John W. O'Neill executed a deed purporting to convey to his wife, respondent Lizzie O'Neill, an undivided one-half interest in and to the property described in the bill, together with other property, reciting a consideration of $5 and love and affection, and that said deed was recorded in volume 1194, at page 44, in the office of the judge of probate of Jefferson county, Ala., but the bill is silent as to the date on which the deed was filed for record.

In paragraph 8 of the bill, as amended, complainants aver that the respondents John W. O'Neill, and his wife, Lizzie M. O'Neill, executed a deed purporting to convey to the respondents, S. R. Benedict, W. E. Mitchell, A. C. Polk, and George E. Blue, the property described in the bill, in consideration of the sum of $20,000, $16,000 of which was paid in cash, and the balance evidenced by four promissory notes of $16,000 each, payable one, two, three, and four years after date, and secured by a mortgage on the property conveyed.

And in the ninth paragraph of the bill, the complainants aver that they had no notice or knowledge that the respondent John W. O'Neill had obtained the two deeds from Bagley and wife, and Amanda Hall, referred to in the bill, until after the execution of the deed by the respondents John W. and Lizzie M. O'Neill to Benedict and associates. The bill also avers that: "Complainants are informed and believe, and upon such information and belief allege that the respondents, Winifred J. O'Neill, Margaret O'Neill, Clara O'Neill, Valentine Gilb and Joseph F. Conway likewise had no knowledge that the respondent, John W. O'Neill, had obtained the deeds from Bagley and Hall, or if they did know of the execution of said deeds, they did not know that they were executed to the respondent John W. O'Neill alone, or that he claimed any interest in said lands other than as one of the heirs and distributees at law of said John W. O'Neill, and likewise had no knowledge of the deed from respondent John W. O'Neill to his wife." To the contrary, the complainants aver that since the death of John W. O'Neill, the father, "the said lands have been considered by all the heirs as their joint property."

The respondents John W. O'Neill and wife, and their grantees, S. R. Benedict, W. E. Mitchell, A. C. Polk, and George E. Blue, again demurred to the bill as first amended, and thereafter the complainants further amended the bill as previously amended, by adding at the end of paragraph 2 the following averment: "Complainants allege that, at the time of the death of their mother, complainant Winifred Gilb was eight years of age, and complainant Margaret Snider was six years of age, and that less than ten years have elapsed since the complainants attained their majority, and before the commencement of this suit."

Upon the filing of this last amendment, the respondents, John W O'Neill and wife, and the said Benedict, Mitchell, Polk, and Blue again interposed their demurrers, and the court, upon submission thereon, sustained the same. The chancellor, as recited in his decree, was of the opinion that the bill of complaint could not be further amended to give it equity, and thereupon dismissed the same. It does not appear that complainants requested to be allowed to make further amendmen...