Graham v. Graham

• Decision Date: 13 June 1918
• Docket Number: 3 Div. 339
• Citation: 202 Ala. 56,79 So. 450
• Parties: GRAHAM et al. v. GRAHAM et al.
• Court: Alabama Supreme Court

79 So. 450

202 Ala. 56

GRAHAM et al. v. GRAHAM et al.

3 Div. 339

Supreme Court of Alabama

June 13, 1918

Rehearing Denied June 29, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Suit by D.M. Graham and another against Peter H. Graham and others. From the decree rendered defendants appeal. Affirmed in part and reversed in part and remanded.

W.P McGaugh, of Montgomery, and Eugene Ballard, of Prattville for appellants.

W.A Gunter, of Montgomery, for appellees.

SAYRE J.

This bill is filed by two of the six children and heirs at law of Mildred R. Graham, deceased, against the others, praying for a sale of lands in Autauga and Montgomery counties for partition. Other parties claiming the right to stand in the shoes of some of the heirs as to parts of the property are made defendants, and as against them incidental and collateral relief is prayed. Demurrers to the bill in its entirety and to parts thereof were overruled in the court below, and defendants have taken this appeal.

Complainants claim title by inheritance from their mother, Mildred R. Graham, while defendants claim through William A. Graham, deceased, husband of Mildred R. and father of the six children aforesaid. Complainants aver title to the lands in Autauga as follows:

"That the title to the lands of the said Mildred R. Graham in Autauga county, herein sought to be sold for division came to the said Mildred R. Graham through a mortgage made by her husband, the said Wm. A. Graham, Sr., on the 13th day of October, 1875, to Leonard Sims, as trustee, for the said Mildred R. Graham, to secure the payment of the sum of $10,000, due by the said Wm. A. Graham, Sr., to the said Mildred R. Graham, payable on the 1st day of January, 1876, which said mortgage was duly recorded in the office of the judge of probate of Autauga county at its date. That the mortgage embraced other property than that herein sought to be sold for division. In said mortgage was a conveyance of certain real estate known as the 'Morgan Place,' but this was afterwards sold and conveyed with the consent of said Mildred R. Graham to third persons, and she allowed the said Wm. A. Graham, Sr., to have the proceeds thereof. That there was some personal property also conveyed in said mortgage, but said Mildred R. Graham allowed the said Wm. A. Graham, Sr., to use the same for the benefit of his family. That the said mortgage debt was not paid at maturity or at any time thereafter, and that at the maturity of said mortgage debt the said property embraced therein, herein sought to be sold for partition, was turned over by said trustee to the said Mildred R. Graham and she went into possession thereof, and so remained by consent of said trustee in her possession as the owner of said property from the maturity of said mortgage to her death in 1908. That the said Leonard Sims died a few years after the maturity of said mortgage, and as the said mortgage embraced all the property of said Wm. A. Graham, Sr., no foreclosure thereof was necessary or useful, and therefore none was had, and that the said Mildred R. Graham, after the maturity of said mortgage debt, remained in possession of said lands as the owner thereof until her death, as aforesaid, in 1908, all with the consent of her said husband, and said trustee Leonard Sims, whereby her title to said property became absolute. Wm. A. Graham, Sr., managed and used the same for her and as her trustee under the law until her death in 1908, after which he remained in possession of his life estate therein until his death in 1907, as aforesaid."

The mortgage to Sims as trustee recited an indebtedness of William A. Graham, Sr., to his wife, Mildred R., in the sum of $10,000 on account of her share in her father's estate, which had been received by her husband, and by him converted to his own use, and provided for a foreclosure in the event of nonpayment. The stipulation of the concluding clause of the instrument was that:

"The said sum of money so by him [the trustee] received for my said wife [as the result of a foreclosure], he shall hold for the sole use and benefit of my said wife to be invested in any manner or disposed of as my said wife may direct in writing."

Notwithstanding the foregoing averments of the bill, among the rest "that at the maturity of said mortgage debt the said property embraced therein, herein sought to be sold for partition, was turned over by said trustee to the said Mildred R. Graham, and she went into possession thereof, and so remained by consent of said trustee in her possession as the owner of said property from the maturity of said mortgage to her death in 1908," appellees say in their brief that:

"The trustee could hardly have accepted the trust, for no affirmative act of his, so far as we know was ever done, recognizing it in any respect; and, if he accepted, there were imperative duties for him to perform which he seems to have neglected. *** His conduct during life [he died a few years after the maturity of the mortgage] and that of the husband and wife for 40 years show that he, the trustee, probably did not accept the trust. Therefore, as in the case of In re Gordon, cited also as Roberts v. Gordon, L.R. (1877) 6 Chan.Div. 531, the legal estate remained in W.A. Graham, as on a covenant to stand seized to the use of another, here for the use of the wife, and on the maturity of the debt, no sale being insisted on by the mortgagor, and no sale being necessary except to separate the interest of the wife and the husband, and the 640 acres of land being all the property of the husband and wife, they had the right to convert the debt to the wife into real property, by waiving a sale and taking the property by the wife as an investment in land, which they did. The taking of the property and keeping it and using it for 32 years as real estate, until the death of the wife in 1908, is conclusive evidence of such election and conversion of the wife's estate into real property. And this may be taken as proof of the allegation in the bill that the interested parties made this election and conversion. The mortgage provided for the investment of the $10,000, on realization on sale under the power in the mortgage, and, no one being interested but the wife and the husband, they had the right, or the wife had with the husband's consent, to accept the property as an investment, which she did, and the husband consenting, as he did, as is conclusively evidenced by his silence for 40 years to assert his equity of redemption, the 640 acres became the property of the wife in fee and stood in the husband's possession as truste of her separate estate until her death, and afterwards, until his death in 1917, as possessor of a life estate therein, under the statute. This is the whole argument, and these are all the material facts necessary to make out the argument."

The demurrer takes the point that the averments of the bill are too vague, indefinite, uncertain, and contradictory to support the...