Martin v. Kelly

• Decision Date: 27 January 1897
• Citation: Martin v. Kelly, 21 So. 337, 113 Ala. 577 (Ala. 1897)
• Parties: MARTIN ET AL. v. KELLY.
• Court: Alabama Supreme Court

21 So. 337

113 Ala. 577

MARTIN ET AL. v. KELLY.

Supreme Court of Alabama

January 27, 1897

Appeal from chancery court, Geneva county; Jere N. Williams Chancellor.

Suit by Sylvester Martin and others against M. W. Kelly. From a decree dismissing the bill for want of equity, complainants appeal. Reversed.

The bill in this case was filed by the appellants, Sylvester Martin and others, against the appellee, M. W. Kelly. The purpose of the bill, as shown by its allegations and prayer was to have a deed to certain lands, executed by the father of complainants to the respondent, vacated, and to have the lands described in said deed decreed to be the property of complainants. The grounds upon which this relief was asked are sufficiently stated in the opinion. The appeal is prosecuted from a decree of the chancellor sustaining the motion of the defendant to dismiss the bill for the want of equity, and this decree is assigned as error. The other facts of the case are sufficiently stated in the opinion.

W. O Mulkey, for appellants.

M. E Milligan and Espy & Farmer, for appellee.

COLEMAN J.

The averments of the bill show that the proceeds of certain land were held in trust by the father of complainants, to be invested by him in the purchase of other lands for their benefit; that the money was invested by him in other lands but the title thereto taken in his individual name. The bill further shows that a part of the lands thus purchased was sold to respondent, and a deed made to him, by their father; but it is expressly averred that respondent purchased the land with full notice and knowledge of the interest and claim of complainants. The prayer is that the conveyances to respondent be annulled, and that the lands be deemed to belong to complainants; and there is a prayer for general relief. According to the averments of the bill, the right of complainants to relief in no wise depends upon the parol agreement of the father that he would invest the money in the purchase of lands for their benefit; but their rights result by operation of law; that the money did not belong to their father, but was received by him, and held for their benefit, and which was invested in lands. The cause came on to be heard on vacation on a motion to dismiss the bill for want of equity, and it was decreed in vacation "that the bill was without equity, and that it be dismissed"; and it was further decreed that "no allowance to amend is given." The appeal is prosecuted from the decree rendered in vacation dismissing the bill. The case was submitted in this court upon the merits, and upon a motion by appellee to dismiss the appeal. The motion to dismiss the appeal is based upon the fact that the appeal was not prosecuted within 30 days from its rendition. Section 3612 of the Code reads as follows: "From any decree rendered by the chancery court in term time, or by the chancellor in vacation, sustaining or overruling a de...