Manning v. Pippen

• Decision Date: 28 February 1889
• Citation: 86 Ala. 357,5 So. 572
• Parties: MANNING v. PIPPEN ET AL.
• Court: Alabama Supreme Court

5 So. 572

86 Ala. 357

MANNING v. PIPPEN ET AL.

Supreme Court of Alabama

February 28, 1889

Appeal from chancery court, Pickens county; THOMAS W. COLEMAN Chancellor.

Bill by David Manning against Minnie F. Pippen and others to enjoin an action of ejectment, and to have declared void and canceled a deed from complainant to his wife, through whom defendants claim. Demurrer and motion to dismiss the bill for want of equity were sustained, and complainant appeals.

M L. Stansel, L. M. Stone, and Watts & Son, for appellant.

Caldwell & Johnson, for appellees.

STONE C.J.

This case was finally decided on demurrer to the bill as amended. A demurrer is an admission of the truth of every fact and intent which is sufficiently averred, and it admits no more. Lake v. Association, 72 Ala. 207; Flewellen v. Crane, 58 Ala. 627; Railway Co. v. Rand, 83 Ala. 294, 3 South. Rep. 686. One of the purposes of the present bill is to enjoin a suit at law for the recovery of a tract of land, instituted by Mrs. Pippen in July, 1886. If the averments of the bill be true, Mrs. Pippen's ejectment suit is founded on an alleged inheritance from her mother, and the mother's title rests on a deed to the lands made by the said David Manning directly to her at a time when the relation of husband and wife subsisted between them. Commenced, as this suit was, in July, 1886, the deed from the husband directly to the wife did not vest a legal title in her, and, as a consequence, the action of ejectment founded on such title could not be maintained. McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Warren v. Jones, 68 Ala. 449; Powe v. McLeod, 76 Ala. 418; Maxwell v. Grace, ante, 319. If the suit had been brought after February 28, 1887, when the new statute defining the rights of married women was approved, the action could have been maintained on the title averred. Maxwell v. Grace, supra.

The original bill avers that the complainant, Manning, intermarried with Mrs. Atkinson in 1868; that she had at the time of the marriage two minor or infant children, and that Minnie, now a married woman, is one of them. The other, a son, has since died, leaving a widow and two infant children. The bill further avers that, in 1871, he, the said David, made to his wife a deed to said lands, being induced to do so by the earnest solicitations and importunities of his wife, she promising as a consideration therefor, and, as an inducement thereto, to make and execute her will, and therein bequeath and devise to him one-third of her estate, including said lands; and that, in consideration of this promise on her part, he did execute a deed, conveying the lands to her. The bill further avers that Mrs. Manning died in 1884 without complying with her promise, and without making any will. The bill avers that the deed to the wife recites a valuable consideration, which is not true as stated. The true consideration, it avers, was the promise of the wife to make her will, and therein provide for the husband, as is stated above. It is not stated whether or not her said promise to make a will was in writing. In this state of the pleading, we cannot assume that Mrs. Manning's promise was simply oral, and pronounce absolutely on the sufficiency of the averments to take the case without the influence of the statute of frauds. To authorize that defense to be raised by demurrer, the bill must show affirmatively that the contract or promise declared on was not in writing. Bromberg v. Heyer, 69 Ala. 25; Phillips v. Adams, 70 Ala. 373.

Treating the case, then, as if Mrs. Manning's alleged promise to make a will was in writing subscribed by her, the question arises, under what condition and to what extent is such promise binding? Pretermitting for the present her disability on account of coverture, the authorities are overwhelming and rest on the soundest basis, that such a promise, supported by a valuable consideration, is valid and binding, unless assailed on some other sufficient ground. Bolman v. Overall, 80 Ala. 451, 2 South. Rep. 624; Johnson v. Hubbel, 10 N. J. Eq. 332, 66 Amer. Dec. 773, and note containing citation of authorities, 784; Caviness v. Rushton, 101 Ind. 500. The case made by the present bill is that, relying on the said promise of Mrs. Manning to make the alleged will, he, the complainant, conveyed to her the land in controversy, and she died the owner of it. If this be true, Mrs. Manning's coverture is no bar to any appropriate relief that can be carved out of the land thus conveyed. The land being acquired on the faith of such promise, equity will charge it with a trust in the nature of unpaid purchase money, for the indemnification of the vendor, to the extent he has suffered from her breach of promise. Marks v. Cowles, 53 Ala. 499; Moore v. Worthy, 56 Ala. 163; Sterrett v. Coleman, 57 Ala. 172; Norman v. Harrington, 62 Ala. 107; Carver v. Eads, 65 Ala. 190. The promise of Mrs. Manning being only to make a will, she had her life-time to do it in, and there was no actionable breach until she died without having complied with her promise. It follows that the statute of limitations did not begin to run until her death. It opposes no bar in this case if the complainant is otherwise entitled to relief. Bolman v. Lohman, 80 Ala. 451, 2 South Rep. 624. If the agreement was such as is set out in the bill, then the conveyance of land made by complainant to his wife was a valuable consideration, which would uphold and bind her promise to make the alleged will; and her promise was a valuable consideration, and the consideration on which his deed to her was executed. This, if true, takes the transaction without the category of a voluntary conveyance or gift by the husband to his wife, and constitutes it a deed of bargain and sale on valuable consideration. The consideration of the deed being on its face valuable, that clause was open to parol proof of any other valuable consideration, because such proof would not change the legal effect of the conveyance as a muniment of title. The promise of the wife, if made, was a valuable consideration, and there is no incompatibility between it and any other valuable consideration which the deed may recite. McGehee v. Rump, 37 Ala. 651; Railway Co. v. Wilkinson, 72 Ala. 286; Stringfellow v. Ivie, 73 Ala. 209. The court of chancery being without power to compel the execution of a will, specific execution of the agreement could at no time have been enforced. But the complainant is not...