Hatcher v. Rice

• Decision Date: 15 October 1925
• Docket Number: 8 Div. 753
• Citation: 213 Ala. 676,105 So. 881
• Parties: HATCHER et al. v. RICE.
• Court: Alabama Supreme Court

105 So. 881

213 Ala. 676

HATCHER et al. v. RICE.

8 Div. 753

Supreme Court of Alabama

October 15, 1925

Rehearing Denied Nov. 12, 1925

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

Bill in equity by Virginia E. Hatcher and another against Georgia D Rice, and cross-bill by respondent. From a decree for respondent, cross-complainant, complainants appeal. Reversed and remanded.

Simpson & Simpson, of Florence, for appellants.

Mitchell & Hughston, of Florence, for appellee.

SAYRE J.

By their bill in this cause, appellants sought a construction of the will of Mattie B. Rice, deceased, under which they claimed an interest as remaindermen in a certain storehouse in the city of Florence, and a settlement of the title thereof. Septimus Decimus Rice, surviving husband of deceased, and Georgia D. Rice, his then third wife, were named as parties defendant; Septimus Decimus on the theory that he took an estate for life under the will of his former wife, Georgia D., because she claimed the property under a deed from her husband. Septimus Decimus died pending a decree, so that, in the end, the contest was between appellants and Georgia D. Rice, with a claim of ownership in fee on either hand. In her cross-bill, defendant set up her claim of title, derived as above stated, and sought its confirmation by decree.

In 1902 W.E. Harrison had owned the property, and in that year had sold and conveyed it, whether to Septimus Decimus or to his then wife, Mattie B., was disputed between the parties. As for the will, the question was whether it vested a fee in Septimus Decimus or an estate for life only. It was determined in the trial court sitting in equity, of course, that by Harrison's deed of conveyance the property had passed to Septimus Decimus, after which there remained no occasion for a construction of the will.

We are clear to the conclusion that the decree was laid in error. There is no sort of doubt that in the deed from Harrison, as filed for record in the office of the judge of probate within a few days after its execution. "Mrs. S.D Rice"--that is, Mattie B. Rice, testatrix in this cause--was named as grantee. Not only was she named as grantee in the manner indicated, but by the habendum clause of the deed the estate was limited to "her heirs and assigns in fee simple forever." Afterwards--just when does not appear--there was a clumsy effort to erase "Mrs." from the record, but enough of it remained to show how the deed had been written, and "her" was not disturbed, probably because its significance was not appreciated. Appellee suggests that this condition of the record may have been due to an error of the copyist and an effort at correction; but we think this explanation hardly explains, for the record appears to have been entitled "W.E. Harrison and wife to Mrs. S.D. Rice," which also was not disturbed. If the transcribing clerk had discovered error and sought to correct it, we conceive it to be highly improbable that he would have thus ineffectually gone about to effect his purpose. It is to be regretted that the original deed was not produced; but defendant, into whose hands came the other papers left by her deceased husband, was unable to find it. However, the record suffices to settle the question.

Defendant put in evidence, and we presume the court took into consideration--for, otherwise, the conclusion that S.D. Rice, and not "Mrs. S.D. Rice," had been named as grantee in Harrison's deed, could hardly have been reached--affidavits made by P.D. Rice and J.E.F. Westmoreland in 1915, and placed upon the probate records of Lauderdale county in July, 1924, after the bill in this cause had been filed and after the necessity for some such evidence in support of appellee's case had become manifest. These affidavits were alike to the effect that the transaction in which Harrison had disposed of the property in dispute had been conducted by Westmoreland, a real estate agent or broker, and that the deed had by him been written to S.D. Rice; that, to quote Rice, "the name of Mrs. S.D. Rice did nor appear in this deed or should not have appeared in the same; she was not known in this deal, and never had any title or interest in this deed or property conveyed thereby"; and, to quote Westmoreland, "I drew the deed *** when this deed was drawn, signed, and delivered to Mr. Rice his name alone appeared as grantee, the name of Mrs. S.D. Rice was not on the paper, and I never knew her in the transaction." Rice was dead when these affidavits were filed for record; Westmoreland was in a sanitarium in Tennessee and unable to appear as a witness. Authority for the use of these affidavits as evidence in this cause is sought in sections 6873 and 6874 of the Code of 1923. But, after allowing all proper effect to these sections of the Code, these affidavits were incompetent and inadmissible.

In Stewart Bros. v. Ransom, 204 Ala. 589, 87 So. 89, we said:

"This act" (now sections 6873 and 6874) "however construed, is in derogation of rights which are commonly secured to parties before the courts and readily lends itself to grave abuse. *** We are clear to the opinion that it ought to be construed strictly. *** Its language, construed as we have indicated, shows the legislative purpose to authorize the parties to conveyances to place upon the record affidavits setting forth facts proper for consideration as affecting the construction, operation, and effect of the conveyance at the time of its execution."

And our judgment now is, in agreement with what it then was, that the statute intends to permit the use in evidence of affidavits made contemporaneously with the conveyance they assume to interpret, not to change or destroy, affidavits which are of the res gestae of the transaction witnessed by the execution and record of the conveyance to be thereby affected--affidavits going at the...