Lewis v. Owen, 4 Div. 858
Decision Date | 14 November 1935 |
Docket Number | 4 Div. 858 |
Court | Alabama Supreme Court |
Parties | LEWIS v. OWEN et al. |
Rehearing Denied Dec. 12, 1935
Further Rehearing Denied Jan. 30, 1936
Appeal from Circuit Court, Geneva County; Emmet S. Thigpen, Judge.
Suit in equity by Mrs. M.A. Lewis against M.E. Owen, L.V. Owen, the Phoenix Mutual Life Insurance Company, and another. From a decree sustaining a demurrer to the bill and dismissing it complainant appeals.
Reversed and remanded.
E.C Boswell, of Geneva, for appellant.
G.A Ward, of Geneva, and Jack Thorington, of Montgomery, for appellees.
The bill was for cancellation of conveyances exhibited. Demurrers being sustained, the bill was amended, and the original grounds of demurrer refiled to the bill as amended were sustained. And the bill as amended was dismissed.
The demurrer of the Phoenix Mutual Life Insurance Company assigned as grounds, among others, that the bill as amended shows that complainant was guilty of laches, and that the rule of prescription prevented a recovery.
The conveyance from complainant, M.A. Lewis, to M.E. and L.V. Owen, of date of November 6, 1908 (before the statute, section 8046, Code, was adopted), contained the following provisions:
That conveyance was duly recorded and carried notice of its conditions to subsequent purchasers or mortgagees, etc. Planters' Warehouse & Commission Co. v. Barnes et al., 229 Ala. 572, 159 So. 63; First Nat. Bank of Eutaw v. Barnes et al., 229 Ala. 612, 614, 159 So. 68; Wittmeir v. Leonard et al., 219 Ala. 314, 122 So. 330; Guaranty Sav. Bldg. & Loan Ass'n v. Russell, 221 Ala. 32, 127 So. 186.
The averments of the bill as amended are aided by the exhibits ( Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90); showed notice of the terms and conditions of the conveyance in question that "run with the land" (Patterson v. Atlantic Coast Line R. Co., 202 Ala. 583, 81 So. 85, 92), and were sufficient to put subsequent purchasers to a due inquiry (First Nat. Bank of Eutaw v. Barnes, supra; Wittmeir v. Leonard et al., supra; Veitch et al. v. Woodward Iron Co., 200 Ala. 358, 76 So. 124).
As affecting bills of this nature, the observation is made in Hunter v. Watters, 226 Ala. 175, 145 So. 472, 474 (subsequent to the adoption of the statute, section 8046, Code), that recent cases are to the effect that "for fraud in the procurement of the conveyance, or for a failure to comply with its terms and conditions, either precedent or subsequent, a conveyance founded upon love and affection, support and maintenance, etc., may be annulled for a breach thereof." In First Nat. Bank of New Brockton v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A.1918F, 353 (a case before the statute, section 8046, Code, was adopted), this court observed that a court of equity looks with favor on the protection of a grantor conveying property to a trusted person in consideration of the promise of support and maintenance during declining years; and in Bank of Hartford v. Buffalow, 217 Ala. 583, 584, 117 So. 183, 185, it was observed of such conveyance (before the statute) that:
In Woods et al. v. Wright, 223 Ala. 173, 174, 134 So. 865, 866, the conveyance was before the statute, and the consideration thus stated to be
It is said of that bill, that "while the bill alleges fraud in general terms, it also alleges that 'said deeds were made in consideration of an agreement between complainant and the said respondents, Nebraska Woods and Georgia V. Cochran, that they would support the grantor during the remainder of her life,' without alleging that said agreement to support the grantor was entered into with the fraudulent purpose on the part of the grantees not to comply therewith, and that the same has not been kept."
It is further recited that more than thirteen years had elapsed after execution of the conveyance, and one of the parties had died; held relief properly denied for laches shown on the face of the bill and duly challenged by demurrer.
In Hannah et al. v. Culpepper, 213 Ala. 319, 321, 104 So. 751, 753 ( ), it is shown that the defendant (grantee in the deed) and the grantors were in possession of the property. The court said:
The decree of cancellation in that case was affirmed.
In the case of First Nat. Bank of New Brockton v. McIntosh, 201 Ala. 649, 653, 79 So. 121, 125 L.R.A.1918F, 353 ( ), it is said:
The bill as amended shows that the complainant was in possession of and occupying the lands involved in this litigation, as a homestead, at the time...
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