Henley v. Masonic Temple Ass'n

• Decision Date: 26 October 1922
• Docket Number: 6 Div. 656.
• Citation: 208 Ala. 371,94 So. 300
• Parties: HENLEY v. MASONIC TEMPLE ASS'N ET AL.
• Court: Alabama Supreme Court

94 So. 300

208 Ala. 371

HENLEY v. MASONIC TEMPLE ASS'N ET AL.

6 Div. 656.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by Tom Peters Henley against the Masonic Temple Association, the City of Birmingham, and the County of Jefferson, to establish a trust in lands. From a decree sustaining demurrer complainant appeals. Affirmed.

W. G Rains and E. O. McCord & Son, all of Gadsden, for appellant.

W. J Wynn, W. A. Jenkins, W. K. Terry. and W. H. Woolverton, all of Birmingham. for appellees.

GARDNER J.

Appellant prosecutes this appeal from the decree of the court below, sustaining the demurrer to his bill as amended. The bill was filed upon the theory of establishing and enforcing a trust in certain lots in the city of Birmingham, embraced in a very general description in the first item of the will of Thomas Peters, deceased, complainant's grandfather. This provision of the will directed that one Sloss, a friend of the testator, take charge of and sell all the testator's interest in Birmingham, paying all balances due and reserving the remainder for the grandson, Thomas Peters Henley, complainant to this bill.

As we construe the bill Sloss did not assume to act under this authority, but one Johnson was appointed administrator with the will annexed, and proceeded with the administration of the estate. The lots, the subject-matter of this litigation were in the possession of Thomas Peters at the time of his death in September, 1883, but were held under a bond for title from the Elyton Land Company, with a balance remaining due thereon. The bill charges that one Hillman procured from the administrator this bond for title fraudulently, and had a new bond issued to himself, and subsequently obtained title from the Elyton Land Company, the date of the deed being 1887; that Hillman conspired with Sloss and the administrator to procure possession of this bond of title. While the exact age of complainant is not stated, yet we construe the bill as disclosing his age at near 14 years at the time of his grandfather's death in 1883. Hillman was not named in the will, but the bill alleges that he was a business associate of the testator, but for aught that appears the association may have been of such a character as to be of little significance. As previously stated, the bill charges that Hillman acquired his title in 1887, and went into possession and continued in possession of said lots until his death in 1905, and that his widow remained in possession thereof until her death in 1917, and the records disclose Hillman's claim of title. The bill, as amended, however, discloses, as we construe its averments, that the estate of Thomas Peters was disposed of under decrees of court, but it is alleged that the estate had been mishandled and fraudulently disposed of for grossly inadequate sums of money under such decrees, which decrees had been illegally and fraudulently procured. For the impeachment of these decrees, it is too clear for discussion that the fraud charged in such general terms is entirely insufficient. Henley v. Rucker (Ala. Sup.) 93 So. 879; De Soto Co. v. Hill, 194 Ala. 537, 69 So. 948; Hogan v. Scott, 186 Ala....