Hall v. Cosby, 8 Div. 436

• Decision Date: 02 March 1972
• Docket Number: 8 Div. 436
• Citation: 258 So.2d 897,288 Ala. 191
• Parties: Eva Mae HALL v. William J. COSBY, Sr. and Gulf American Land Corporation, a Corporation.
• Court: Alabama Supreme Court

Page 897

258 So.2d 897

288 Ala. 191

Eva Mae HALL v. William J. COSBY, Sr. and Gulf American Land Corporation, a Corporation.

8 Div. 436.

Supreme Court of Alabama.

March 2, 1972.

Griffin & Griffin, Huntsville, for appellant.

Wilson & Collier, Florence, for appellee William J. Cosby, Sr.

Cabaniss, Johnston, Gardner & Clark, and C. Henry Marston, Birmingham, for appellee Gulf American Land Corp.

MADDOX, Justice.

Appellant, Mrs. Eva Mae Hall, claims that her former husband induced her to give him a power of attorney while she was a patient at Bryce Hospital, and then used the power of attorney to transfer and assign to himself rights she had in Florida real property, all without her knowledge, consent and without any consideration. She sought to set aside and void the assignment of her interest in the Florida property.

The former husband defended on the ground that (1) he had specific authority to transfer the interest to himself and (2) the issue of the title to the Florida property was tried or should have been tried in the divorce proceeding he filed against her.

The facts are not seriously disputed. The testimony was taken orally before the court.

Eva Hall and William Cosby were married for 26 years. Eva had been committed to Bryce Hospital on three occasions and was hospitalized in Memphis, Tennessee on two occasions for an emotional illness. In March, 1967, she had come home from Bryce for a week before Easter. It was during this time that her husband asked her to give him a power of attorney. The evidence is barely conflicting on the reason for the power. Eva claimed he wanted it for 'filing income tax.' William said he told her 'that it was near time to sign tax forms and execute written documents.'

On March 25, 1967, appellant signed the power of attorney at a local bank before a notary public and stated she knew what she was signing. It was a general power of attorney. She went back to Bryce the next day.

On October 13, 1967, appellant's former husband executed the assignments transferring her interest in the Florida property to him, without consideration. Five months later he filed for divorce on grounds of separation, and by amendment, he claimed his wife had 'become addicted to habitual drunkenness.' The divorce proceeding was very much contested. The trial judge granted the husband a divorce and entered orders with regard to personal and real property located in Lauderdale County. No disposition was made of the Florida property by the decree in the divorce proceeding. The only mention of the Florida property was in appellant's answer to the divorce proceeding. She admitted joint ownership of the property in Alabama, but also alleged:

'. . . Also that Complainant and Respondent own property in the State of Florida, some being located at River Ranch Acres, and some at Cape Coral, Florida.'

The record of the divorce proceeding, introduced as evidence in this cause, indicates that the appellant, on June 4, 1968, filed a motion in the divorce proceeding to have the submission set aside and to allow the appellant to introduce evidence concerning the Florida property. She alleged that she did not know until May 29, 1968 that her husband had used the power of attorney to transfer her interest in the property to him. The trial judge set the motion down for a hearing for a date certain, but the record shows No ruling was ever made concerning the motion and the Final decree of the court makes no mention of the Florida property. The husband's contention that the issue was adjudicated in the divorce case, based upon an examination of the record before us, is without merit.

The husband's defense of res judicata is, therefore, unavailing. There was no duty on respondent to open up the suit and expand the issues so as to seek judicial approval of actions with respect to which no breach of law or duty or contract was alleged in the bill of complaint in the divorce action. The...