Gunter v. Frix
| Citation | 93 So.2d 423,265 Ala. 576 |
| Decision Date | 07 March 1957 |
| Docket Number | 6 Div. 37 |
| Parties | Maggle GUNTER et al. v. Sovola Gunter FRIX et al. |
| Court | Supreme Court of Alabama |
The instrument relied upon by respondents is as follows: S. G. Gunter and Claudie Gunter to Magie, Jinie, Janie & Lela Gunter
The State of Alabama, Blount County.
Know all men by these presents, That for and in consideration of sustainance Dollars, to the undersigned grantors S. G. Gunter and his wife Claudie Gunter in hand paid by Magie, Jinie, Janie and Lela Gunter the receipt whereof is hereby acknowledged we do grant, bargain, sell and convey unto the said Magie, Jinie, Janie & Lela Gunter at our death the following described real estate, to-wit:
The South West (1/4) quarter of Sec. 21 T. 10 R 2 E. Also the North West 1/4 of the North West 1/4 of Sec. 25, T. 10 R 2 East Except all that part of the North West 1/4 of the South West 1/4 lying on the North side of the mill branch as sold to A. V. French, containing in all 185 acres more or less. This deed is to take effect at our death, all situated in Blount County, Alabama.
To have and to hold to the said Magie, Jinie, Janie & Lela Gunter, their heirs and assigns forever. And we do, for our heirs, executors, and administrators, covenant with the said Magie, Jinie, Janie & Lela Gunter their heirs and assigns, that we lawfully seized in feesimple of said premises; that they are free from all incumbrances, and that we have a good right to sell and convey the same as aforesaid; that we will and our heirs, executors, administrators, shall warrant and defend the same to the Magie, Jinie, Janie & Lela Gunter, their heirs, executors, and assigns forever, against the lawful claims of all persons.
Given under our hands and seal this the 8 day of Dec. 1920.
S. G. his X Mark Gunter (L. S.)
Claudie her X Mark Gunter (L. S.)
The State of Alabama, Blount County.
I, A. J. Jones, Justice of the Peace in and for said County and State, hereby certify that S. G. Gunter and his wife Claudia Gunter whose names are signed to the foregoing conveyance, who are known to me, acknowledged before me on this day that being informed of the contents of this conveyance they executed the same voluntarily on the day the same bears date.
Given under my hand this 8 day of Dec. 1920.
A. J. Jones
Justice of the Peace
The State of Alabama, Blount County.
I, A. J. Jones, Justice of the Peace in and for said County and State, hereby certify that Eulus Gunter a subscribing witness to the within conveyance known to me appeared before me this day, and being duly sworn, stated that S. G. Gunter and Claudie Gunter the grantors in the conveyance, voluntarily executed the same in his presence, and in the presence of the other subscribing witness, on the day same bears date; that he attested the same in the presence of the grantors and of the other witness, and that such other witness, subscribed their names as a witness in his presence.
Given under my hand this 8 day of Dec. 1920.
A. J. Jones
Justice of the Peace
The State of Alabama, Blount County.
I, A. J. Jones, Justice of the Peace in and for said County and State hereby certify that on the 8 day of Dec. 1920, came before me the within named Claudia Gunter, known (or made known) to me to be the wife of the within named S. G. Gunter who, being examined separate and apart from her husband touching her signature to the within conveyance, acknowledge that she signed the same of her own free will and accord, and without fear, constraint, or threats on the part of her husband.
In witness whereof, I have hereunto set my hand this 8 day of Dec. 1920.
A. J. Jones
Justice of the Peace
The State of Alabama, Blount County.
I hereby certify that this conveyance was filed in my office for record on the 6 day of Aug. 1923 and was duly recorded on the 7 day of Aug. 1923 in Vol. 42, Page 491 of Records of Deeds.
J. C. Nation
Nash & NeSmith, Oneonta, for appellants.
Jack Martin Bains and J. E. Bains and Leland Randall, Oneonta, guardian ad litem, for appellees.
This is an appeal from a final decree of the circuit court of Blount County, in equity, ordering the sale of approximately 185 acres of land for division of the proceeds among the complainants and respondents below, whom the trial court found to be the joint owners of the land.
For the purposes of this appeal it can be said that the complainants and the respondents below constitute all of the heirs at law of William T. Gunter, who died intestate on May 30, 1923.
It was without dispute that William T. Gunter at one time owned the suit property in fee simple. The disagreement between the complainants and respondents below was in regard to his ownership of the fee simple title at the time of his death. The complainants below, the appellees here, who are the descendants of William T. Gunter and his first wife, contended that he owned the fee simple title at the time of his death. The respondents below, who are the descendants of the said Gunter and his second wife, asserted that by virtue of a written instrument (which they contended to be a deed) signed and acknowledged by Gunter and his second wife, Claudie, on December 8, 1920, the fee simple title to the suit property at the time of Gunter's death was in four of the respondents, the daughters of William T. and Claudie Gunter namely, Maggie, Jinie, Janie and Lela Gunter.
The trial court found that the written instrument bearing date of December 8, 1920, conveyed no interest in the suit property and that William T. Gunter owned the fee simple title thereto at the time of his death. Since it was established beyond peradventure that the said land could not be equitably divided in kind among the numerous heirs at law of William T. Gunter, the trial court decreed that the land be sold for division of the proceeds. From that decree the respondents, Maggie Gunter, Jinie Gunter, Janie Gunter and Lela Gunter Singleton have appealed to this court.
The said written instrument, to which we will refer sometimes hereafter as the 1920 written instrument, is set out in the report of the case. It will be observed that the names of S. G. Gunter and Claudie Gunter were affixed to the 1920 written instrument by marks. In the trial below there was some insistence made by the complainants to the effect that William T. Gunter and S. G. Gunter were not one and the same person, but the trial court did not feel called upon to pass on that question. However, in brief filed here on behalf of appellees, complainants below, is this statement: 'The Appellees admit that William T. Gunter, S. G. Gunter, W. T. Gunter, Shib Gunter are one and the same person, etc.'
It appears from the written opinion made a part of the trial court's decree that the holding to the effect that the 1920 written instrument was insufficient to pass title to appellants was based in large part on the court's finding that there had been no delivery of the 1920 instrument prior to the death of the said W. T. alias S. G. Gunter. We quote:
'The Court heard the testimony as delivered from the witness stand and has read and reread the transcript of the testimony and is entirely unable to affirm that such deed was delivered to the respondent[s] or to anyone for them during the lifetime of the ancestor Gunter and that therefore the respondents cannot successfully claim to be the sole owners of the property under such instrument.
'While the instrument was written on blank, printed form adapted for warranty deed, and although a determination of the intention of the person executing the same is not necessary for a decision of the case, the Court is of the opinion that the real intention of Mr. Gunter was not to pass the title or any vested interest in the lands in the respondents but that he had in mind a disposition of the lands which would not have any legal significance during his lifetime.'
Maggie Gunter, Jinie Gunter, Janie Gunter and Lela Singleton, nee Gunter, are named in the 1920 instrument as grantees. They were among the respondents below and were offered as witnesses in their behalf. Under the provisions of § 433, Title 7, Code 1940, they were disqualified to testify that their father, William T. Gunter, delivered the 1920 written instrument to either of them or to any of the grantees named in the instrument. Money v. Money, 237 Ala. 653, 188 So. 678.
However, we are of the opinion that the trial court erred in...
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