Martin v. Kelly

• Decision Date: 13 February 1902
• Citation: 31 So. 476,132 Ala. 201
• Parties: MARTIN ET AL. v. KELLY.
• Court: Alabama Supreme Court

31 So. 476

132 Ala. 201

MARTIN ET AL. v. KELLY.

Supreme Court of Alabama

February 13, 1902

Appeal from chancery court, Geneva county; W. L. Parks, Chancellor.

Suit by Sylvester Martin and others against M. W. Kelly. Decree for defendant. Complainants appeal. Affirmed.

Mulkey & Mulkey, for appellants.

Espy Farmer & Espy, for appellee.

DOWDELL J.

On the former appeal in this case (Martin v. Kelly, 113 Ala. 577, 21 So. 337), which appeal was taken from the decree of the chancellor sustaining a motion to dismiss the bill for want of equity, it was then held that, on the averments of the bill, a resulting trust was created in favor of the complainants, and that the decree dismissing the bill for want of equity was erroneous. The question of the statute of limitations and staleness of demand was not presented for consideration on that appeal. It appears from the bill, as well as the facts as now presented, that the resulting trust sought to be enforced arose on the act of Sylvester Martin the father of the complainants, in taking the deed to the land in question in his own name, which was paid for with money furnished by one Glover, the uncle of complainants, and averred to be intended for their benefit and use, and that this was done in the year 1870, more than 20 years before the filing of the bill; that during all of this time most, if not all, of the complainants were persons sui juris.

On these facts, the statute of limitations, as well as the defense of the staleness of demand, under the authority of Brackin v. Newman (Ala.) 26 So. 3, seems conclusive against complainants' right of action. See, also, in this connection, Robinson v. Pierce, 118 Ala. 273, 24 So 984, 45 L. R. A. 66, 72 Am. St. Rep. 160. And as to the staleness of the demand, see Nettles v. Nettles, 67 Ala. 599; James v. James,

55 Ala. 525; Solomon's Heirs v. Solomon's Adm'r, 81 Ala. 505, 1 So. 82; Gibson v. Herriott (Ark.) 17 S.W. 589, 29 Am. St. Rep 17; Smith v. Thompson, 54 Am. Dec. 126.

It is true the bill contains the following averment "Complainants aver that the said Sylvester Martin and the complainants in this cause lived together in the quiet enjoyment of this land up until the year 1885." This allegation is not sufficient to avoid the statute of limitations. See Philippi v. Philippi, 61 Ala. 41. The fact that there was testimony offered on the part of the complainants tending to show that Sylvester Martin, the...