McCary v. Davis
| Decision Date | 03 April 1952 |
| Docket Number | 6 Div. 326 |
| Parties | McCARY v. DAVIS et al. |
| Court | Alabama Supreme Court |
Hugh A. Locke, Reid B. Barnes and Winton G. Wilson, all of Birmingham, for appellant.
Beddow & Jones, Roderick Beddow, and G. Ernest Jones, Jr., Birmingham, for appellees.
Nell McCary filed her verified bill in the circuit court of Jefferson County, in equity, on February 24, 1951. She made respondents to the bill her husband, William N. McCary; Sally W. Davis; Highland General Hospital, Inc.; Highland Nursing Home; Mrs. S. W. Davis Nursing Home; J. L. Davis, Inc.; Nabers Land Company, Inc.; and Jerre L. Davis, a minor.
We will state the case made by the bill according to our understanding of the bill.
The complainant, Nell McCary, and the respondent William N. McCary were married on November 26, 1919. They lived together in Birmingham until some time in 1946. They were legally separated in April, 1948. During the time they lived together as man and wife Nell McCary turned over to the respondent William N. McCary the sum of $1,900, which he used for his own benefit and which sum he has not repaid.
On June 9, 1950, Nell McCary obtained a decree against her husband, the respondent William N. McCary, in the circuit court of Jefferson County, in equity. The bill does not clearly show the nature of the decree and it is not made an exhibit. Thereafter, on July 10, 1950, in the same cause, a decree was entered against William N. McCary in favor of Nell McCary 'in the amount of Three Hundred ($300.00) to be paid within twenty-two (22) days from the date of such decree, and alimony pendente lite in the amount of One Hundred Fifty ($150.00) per month, plus an additional sum of Five Hundred ($500.00) Dollars as solicitor fee pendente lite.' It is averred that William N. McCary has made no payment required by that decree and that 'the entire amount thereof' is due, with interest.
In 1949 the respondent William N. McCary owned all of the stock in the respondent Nabers Land Company except two shares. Nabers Land Company has large holdings of land and for a number of years has been engaged in selling lots to colored people, and it is complainant's belief that the said company collects not less than one thousand dollars a month from the sale of lots or rentals. Nabers Land Company has sold other property for which it has received a considerable sum of money. The bank account of Nabers Land Company has been inactive since the decree of July 10, 1950.
The respondent William N. McCary owns interests in certain rental property, but the amount which he receives from the rental of this property is unknown to complainant. In 1947, the said McCary and his co-owner sold a piece of property in Birmingham, from which sale McCary received the sum of $5,000.
In so far as complainant can ascertain, McCary has no funds of any appreciable amount on deposit with any bank in Birmingham or in any other bank except in a joint account in a bank in New Orleans, Louisiana.
The respondent Sally W. Davis operates a nursing home at 1612-11th Avenue, South, Birmingham, under the names of Highland General Hospital, Highland Nursing Home and S. W. Davis Nursing Home.
Respondent William N. McCary is and has been for a number of years an alcoholic and drug addict, according to the averments of the bill. In the latter part of 1944 or the first part of 1945 he entered the nursing home operated by Sally W. Davis for treatment.
From some time in 1945 until the filing of the bill, according to the averments of the bill, the respondents William N. McCary and Sally W. Davis have lived together as man and wife. A considerable part of their life together has been spent in the nursing home of the said Sally W. Davis, where McCary has remained ostensibly as a patient.
The bill further avers, in substance, that the respondent William N. McCary, due to the continued use of alcohol and narcotics, is mentally unfit to handle business affairs that he is under the domination and control of the respondent Sally W. Davis, who is fraudulently and intentionally taking advantage of McCary's condition and is taking from him by gift, loan or subterfuge, his property and estate and McCary is in danger of becoming reduced to poverty and want; that such conduct on the part of the respondent Sally W. Davis is a fraud upon the complainant as the wife of the respondent William N. McCary and as his judgment creditor.
Respondent McCary has made the respondent Sally W. Davis vice-president of the Nabers Land Company and she is conducting its affairs and is using its income for her use and not depositing such income in the bank account of Nabers Land Company. The respondent, Sally W. Davis, prior to January, 1949, made the respondent McCary the president of Highland Nursing Home, which she owned.
The respondents McCary and Davis have a joint bank account in Whitney National Bank of New Orleans, Louisiana, in the name of W. N. and Sally W. McCary. As to this account the bill avers:
According to the averments of the bill, the respondents McCary and Davis have other bank accounts in which funds of respondents William N. McCary, Sally W. Davis, Nabers Land Company, Highland General Hospital, and the other enterprises of Sally W. Davis are commingled.
The bill contains a list of the real estate holdings of the respondent Sally W. Davis and avers that money belonging to William N. McCary and the Nabers Land Company has been used by the respondent Sally W. Davis in the purchase of some of the property and in paying on the mortgage indebtedness on other property.
The bill also contains averments to the effect that large sums of money of William N. McCary have been deposited in Birmingham banks to the credit of the accounts of Sally W. Davis. It is further alleged that the respondent McCary has a legal and equitable interest in the enterprises of Sally W. Davis. Complainant offers to do equity.
The prayer of the bill is as follows:
'Complainant further prays that a receiver be appointed for the Nabers Land Company and for William N. McCary and that such receiver be authorized and empowered to collect all funds due to either of them and to operate and handle the affairs of the said Nabers Land Company and to manage the affairs of the said William N. McCary under such terms and conditions and with such powers as may seem fit to this Honorable Court.
'Complainant further prays that an accounting be had between complainant and William N. McCary, and that an accounting be held between William N. McCary and Sally W. Davis, Nabers Land Company, Highland General Hospital, Inc., Highland Nursing Home, Mrs. S. W. Davis Nursing Home, J. L. Davis Company, Inc., and Jerre L. Davis, and for the payment of any judgments that may be rendered.
'Complainant further prays that upon a final hearing hereof that the temporary injunction herein sought be made permanent.
'Complainant further prays separately and severally for a judgment against each and every respondent and a lien against each and every separate and several piece of property of each and every respondent hereof, for the enforcement of such judgment.
'Complainant prays separately and severally for a judgment and lien against each and every separate and several item of property of Sally W. Davis.
'Complainant further prays for a judgment against William N. McCary for all amounts ascertained due to complainant and for a lien against all property, real or personal, held by him for the enforcement of such judgment.
'Complainant prays for such other, further, different or general relief as may be meet and proper in the premises.'
Upon the filing of the bill the following order was entered:
'2/24/51 application for Receiver granted on Complainant's Executing bond in the sum of $2000.00 and Receiver's bond is hereby fixed at $25,000. Let injunction issue as prayed upon Complainant executing bond in the sum of $2000.00. All above bonds to be conditioned as provided by law and to be approved by the Register of this Court.
Upon complainant executing the required bond of $2,000 a writ of injunction was issued on February 24, 1951, in pertinent part as follows:
'These, Therefore, are to command and Strictly Enjoin you, the said Sally W. Davis, William N. McCrary, Highlands General Hospital, Inc., and Nabers Land Company...
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American Life Ins. Co. v. Powell, 6 Div. 640
...much for general governing rules. A reservation of rulings on certain grounds of demurrer in a decree was referred to in McCary v. Davis, 257 Ala. 456, 59 So.2d 569. In that case the decree overruled the demurrer in the one aspect of the bill holding it to contain equity and reserving to th......
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Barran v. Roden, 8 Div. 730
...250 Ala. 336, 34 So.2d 139; American Life Ins. Co. v. Powell, 260 Ala. 574, 71 So.2d 872. This is not in conflict with McCary v. Davis, 257 Ala. 456, 59 So.2d 569. Appellee moved to dismiss the appeal because of certain proceedings had after the decree on the demurrer and before the appeal ......