Jacoby v. Funkhouser

• Decision Date: 13 April 1905
• Citation: 40 So. 291,147 Ala. 254
• Parties: JACOBY ET AL. v. FUNKHOUSER ET AL.
• Court: Alabama Supreme Court

40 So. 291

147 Ala. 254

JACOBY ET AL. v. FUNKHOUSER ET AL.

Supreme Court of Alabama

April 13, 1905

Rehearing Denied Jan. 30, 1906.

Appeal from Chancery Court, Colbert County; W. H. Simpson Chancellor.

"To be officially reported."

Bill by L. P. Funkhouser and others against George W. Jacoby and others. Decree for complainants, and defendants appeal. Reversed.

Kirk Carmichael & Rather and Nathan A. Prentiss, for appellants.

Brickell & White, for appellees.

DOWDELL J.

The amended bill, on which the case was tried and a final decree rendered, shows that in 1883 Robert M. Funkhouser, Sarah J Funkhouser, his wife, and Tilden S. Funkhouser, as trustee of Sarah J. Funkhouser, executed two deeds, copies of which are made exhibits to the bill, conveying the lands in question to S. Jacoby. These deeds each recite a consideration of $1, "and other valuable consideration," and are on their face absolute conveyances with the usual covenants of warranty and seisin. The bill avers that no consideration in fact was paid, "but that said conveyance was intended only to vest the legal title to said property in said Jacoby as trustee for the benefit of said Sarah J. Funkhouser; that said Robert M. Funkhouser had long been upon terms of the most intimate friendship and confidence with said Jacoby, and reposed in him the greatest trust and confidence; that subsequently for many years said Robert M. Funkhouser paid the taxes upon said property, and since the death of said Robert M. Funkhouser said Jacoby informed your orators that their father was accustomed to pay the taxes upon said property, and inquired if they would continue to do so, and your orators did furnish said Samuel Jacoby with money with which to pay said taxes; that subsequent to the execution of said deed said Jacoby advanced to said Robert M. Funkhouser various sums of money at different times, and the said Jacoby looked to said property held in trust as security for its payment; that subsequent to the death of said Robert M. Funkhouser, Sarah J. Funkhouser, and Samuel Jacoby, your orators, through L. P. Funkhouser, have often demanded of the defendant Jacoby settlement of the account due said Samuel Jacoby, their deceased testator, but have failed to procure such settlement; that said defendants Jacoby have claimed that there was an agreement between their deceased parents that Samuel Jacoby was to receive for his services in the event of a sale of said land 10 per cent. of the proceeds of such sale as his commissions therefor, but your orators are advised that the death of either of said parties terminated said agreement; that said Samuel Jacoby departed this life at his home in the city of New York, and state of New York, some time in the fall of 1899, as plaintiffs are informed and believe and from such information and belief state the fact to be, and that thereafter the defendants Geo. W. and J. C. F. Jacoby qualified as executors of his last will, and as such have through their agent, the defendant Moody, advertised the said property for sale on the 7th day of April, 1902, being Monday next, and unless restrained by this court will proceed to sell the same, to the irreparable injury of complainants." The complainants are the children and heirs at law of Robert M. Funkhouser and Sarah J. Funkhouser, the former having died February 20, 1898, and the latter in May, 1900; and the respondents, except the respondent Moody, are the executors of the last will of Samuel Jacoby, deceased. The foregoing are substantially all of the averments of the amended bill. The prayer of the bill is for an injunction prohibiting the respondents from selling the land, and, further: "That upon the final hearing hereof an account be had between your orators and the defendants for the settlement of any amount due their deceased testator by said Robert M. Funkhouser or said Sarah J. Funkhouser, and that the complainants be allowed such time as to the court may seem proper to pay into court the amount found due upon such accounting, or, upon their failure to make such payment within the time allowed, that the property be sold, and the proceeds devoted, first, to the payment of the amount found due upon said accounting, and the balance paid over to your orators, and that said deeds of date May 28, 1883, be by the decree of this court declared to create said Jacoby a trustee for the benefit of your orators, and that said trust be terminated, and for such other and further relief as justice may require and to the court may seem meet and proper."

In none of the facts stated or averments made in the bill is there even a suggestion upon which to base the claim of a trust in the lands arising or resulting by implication of law. Patton v. Beecher, 62 Ala. 589. And with this statement we pass from that part of the argument of counsel in brief, feeling that it would serve no good end to discuss a question to our mind, in a sense, foreign to any case made by the bill. Nor are there any facts averred upon which to rest the theory of an equitable mortgage. The bill does not aver in terms, nor does it state any facts from which might be inferred, that there existed any indebtedness from the grantors to the grantee at the date of the execution of the deeds, or...