Lewis v. Mohr

• Decision Date: 21 November 1892
• Citation: 11 So. 765,97 Ala. 366
• Parties: LEWIS ET AL. v. MOHR ET AL.
• Court: Alabama Supreme Court

11 So. 765

97 Ala. 366

LEWIS ET AL. v. MOHR ET AL.

Supreme Court of Alabama

November 21, 1892

Appeal from chancery court, Montgomery county; JOHN A. FOSTER Chancellor.

Bill by Lizzie E. Lewis and others against Michael Mohr and others to establish in complainants' favor a resulting trust in land. From a decree sustaining a demurrer to the bill, and dismissing it for want of equity, complainants appeal. Affirmed.

The principal objections urged to the bill by way of demurrer were as follows: (1) The bond for title was taken for Mrs Lewis, whose money was used in the purchase of the lands; (2) the payment of her money was not made at the time of the purchase, and therefore the contract and payment are not coeval; (3) if there be any resulting trust, it is in the whole tract of land; (4) that complainants' demand is a stale demand; (5) that when she took a title from Cox to the lands, coupled with its burdens, she merged her resulting trust in said title; (6) that she has estopped herself from asserting her resulting trust; (7) that Mohr is a bona fide purchaser for value without notice of her resulting trust; (8) that said building and loan association advanced the money to make the second payment on the whole tract of land alleged to have been purchased, and Mrs. Lewis had the benefit of such payment. On the submission of the cause upon the demurrers, the chancellor sustained all of the grounds of demurrer except the one for staleness, and also decreed that there was no equity in the bill. The complainants bring this appeal, and assign the chancellor's decree upon the demurrers as error.

Arrington & Graham and A. A. Wiley, for appellants.

W S. Thorington, for appellees.

MCCLELLAN J.

This bill is filed by the heirs at law of Martha J. Lewis, deceased, for the purpose of having declared and enforced in their favor a resulting trust in 300 acres of land, in the purchase of which, it is alleged, certain funds belonging to the statutory separate estate of Mrs. Lewis were used by her husband, Dixon H. Lewis. It is averred that said Dixon H., as trustee for the said Martha J. Lewis, purchased 900 acres of land from Metcalf for $16,000 in round numbers, one third cash, and balance of purchase money in equal installments at one and two years; that the cash payment was made with funds belonging to her statutory separate estate, and that thereupon Metcalf executed to said Dixon H. Lewis, as such trustee, a bond for titles conditioned to make title to Martha J. Lewis, or to her husband, as her trustee, on full payment of the purchase money. Before the second installment of the purchase money became due, Dixon H. Lewis, it is further alleged, as Mrs. Lewis' trustee, sold certain 300 acres of the tract to one Cox for $11,000, half cash, and balance at one year; that the cash payment was made to Metcalf, and thereupon, or rather in anticipation thereof, he conveyed this parcel to Cox in fee, in accordance with an arrangement between himself and Cox and Lewis as such trustee. It also appears from the bill that Cox mortgaged the land to the Montgomery Mutual Building & Loan Association to procure money with which to make the cash payment, and that the sum so borrowed was, as above stated, paid to Metcalf. Subsequently, Cox, failing to make the second payment for this 300-acre parcel to Mrs. Lewis, or her trustee, said Dixon H., conveyed it to her upon condition that she would assume and pay all liabilities which Cox had incurred in the premises to the building and loan association. The debt due that association and secured by Cox's mortgage was not paid, and, the association having been dissolved, and a receiver appointed, the receiver sold the land under a power of sale contained in the mortgage. The respondent and appellee Mohr became the purchaser at that sale, complied with its terms, received a conveyance accordingly, and has since held possession of and claimed to own the same. The bill was demurred to on several grounds. The chancellor held some of the assignments of the demurrer well taken, and from the decree in that behalf this appeal is prosecuted.

The transactions involved occurred prior to the enactment of the present law respecting the estates of married women. Under the former law it was within the competency of the husband in his capacity of trustee for the wife, to purchase property for her, with her concurrence, and pay for it with funds belonging to her statutory separate estate. He also, as such trustee, had power and authority, with her consent and concurrence, to sell property constituting her statutory separate estate for reinvestment. Marks v. Cowles, 53 Ala. 499. It is not averred in the bill that Mrs. Lewis assented to and concurred in either the purchase of the 900-acre tract from Metcalf, or the sale of 300 acres of that tract to Cox; but the bill contains nothing going in any degree to negative such concurrence on her part. It is, however, as we have seen, alleged that both this purchase of the whole tract and this resale of a part of it were made by Dixon H. Lewis as the husband and trustee of Martha J. Lewis. It further appears that Metcalf's bond for title was conditioned for a conveyance to Martha J. Lewis or to Dixon H. Lewis, as her trustee; and also that Cox conveyed the 300-acre parcel to Mrs. Lewis upon his failure to pay the deferred installment of purchase money on the sale by Dixon H. Lewis, as her trustee, to him. Now, as the averments of the bill in relation to the capacity in which Dixon H. Lewis purchased the land and resold a part of it cannot be technically accurate unless Mrs. Lewis concurred in those transactions, and as there is no negation of such concurrence, the bill is open to a construction whereby it will be taken to import that Mrs. Lewis did efficaciously concur both in the purchase from Metcalf and in the sale of a part to Cox; and, this construction being the most unfavorable one to the claims of the complainants, it...