McCaw v. Barker

• Decision Date: 20 May 1897
• Citation: 115 Ala. 543,22 So. 131
• Parties: McCAW v. BARKER, ET AL. PEGRAM v. SAME.
• Court: Alabama Supreme Court

22 So. 131

115 Ala. 543

McCAW v. BARKER, ET AL.

PEGRAM v. SAME.

Supreme Court of Alabama

May 20, 1897

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by Ann E. McCaw against Prelate D. Barker and others. From a decree in favor of defendants, complainant in the original bill, and R. G. Pegram, trustee, complainant in a cross bill appeal. Affirmed.

The original bill in this case was filed by Ann E. McCaw on June 20, 1891, against R. G. Pegram, as trustee of the devisees under the will of John D. Ragland, deceased, Prelate D Barker and James W. Lapsley, Osborne H. Parker, Oscar E Smith and William Stringfellow, as executors of the will of Duncan T. Parker, deceased. The bill was subsequently amended, and as amended, alleged in substance the following facts: Ann E. McCaw, as surviving trustee under the will of Hugh McCaw, deceased, owned and undivided one-third interest in the property in the city of Mobile, known as "Planters' Press and Warehouse"; that R. G Pegram, as trustee for the devisees under the will of John D. Ragland, deceased, owned an undivided one-half interest in said property, and that Prelate D. Barker owned an undivided one-sixth interest in said property, and all were tenants in common. On April 13, 1885, Duncan T. Parker purchased the one-sixth interest owned by Barker from Mrs. Mary L. McCaw, the former owner, and which interest he, the said Parker, conveyed to the said Barker, and the said Barker held the same by an unrecorded deed from Parker. The deed from said Mary L. McCaw to said Duncan T. Parker was recorded on the 26th day of September, 1886. After said purchase Parker & Barker, a firm composed of said D. T. Parker and P. D. Barker, held themselves out as the tenants in common with the owners as aforesaid of said property and dealt with it as such part owners. The firm of Parker & Barker combined together secretly and clandestinely to use the said one-sixth interest for their joint interest and advantage and in fraud of the other co-tenants, and on the 21st day of October, 1886, made a written contract with the Cotton Press Association as follows: "This association agrees to pay *** Parker & Barker $1,200 per annum to prevent Planters' Press and Warehouse from being used in any way for the cotton press or storage business, which they herein guaranty to do. ***" This contract was for four years from and after the 1st day of September, 1886. The bill further alleged that Parker & Barker jointly received the money agreed to be paid them in said contract without notice to complainant, to wit: $1,200 on March 16, 1887, $1,200 on the 8th of January, 1888, $1,200 on the 8th of January, 1889, and $1,200 on the 8th of January, 1890. Prior to the time of the purchase of said one-sixth interest in said property by Parker, and during the year 1885 and previous thereto, the Cotton Press Association of Mobile, had been paying the owners of said property, viz. Ann E. McCaw, as trustee, and said Pegram, as trustee, and said Mary L. McCaw the sum of $1,500 per annum rent for said property. During the existence of said contract between said Parker & Barker and the Cotton Press Association, viz. for four years from September 1st, 1886, said property remained practically vacant, being used only to a limited extent, said association refusing to rent the same as it had been doing. No part of the $1,200 per annum or $4,800 received by Parker & Barker from the Cotton Press Association has been paid to said Ann E. McCaw as surviving trustee, or to said Pegram as trustee. Said contract was studiously kept secret by Parker & Barker from the other co-tenants and they did not know, and they had no means of knowing of its existence, until about August 12, 1890, when said Cotton Press Association commenced a suit in said chancery court and made said contract an exhibit to its bill. Complainants, after learning of the existence of said contract, assented to the same and made demand on P. D. Barker, and also upon the executors of said Duncan T. Parker, said Parker having died in April, 1890, for their proportion of said $4,800 rent. The prayer of the bill was that the said Pegram as said trustee, P. D. Barker and the executors of said Duncan T. Parker should be made parties and that the said Barker and the executors of said Parker should pay to complainants their proportion of the money received by the said Parker & Barker from the Cotton Press Association by virtue of said contract, and further, that this honorable court should render a decree "compelling the said P. D. Barker and the executors of D. T. Parker, deceased, to account with them in this court for their share of the rents, profits and proceeds of said property." Said R. G. Pegram, as trustee, under the will of John D. Ragland, deceased, admitted that allegations of said bill and prayed that his answer might be taken as a cross bill and that the said Barker and the executors of said Parker should account to him in said court for his share of said money paid by said Cotton Press Association to said Parker & Barker, less proper credits, if any, to which the said Parker & Barker should be entitled. The footnotes to the original bill and to the cross bill waived answers under oath. On March 17, 1892, the complainants in the original bill and the complainant in the cross bill filed separate motions, each praying to be allowed to amend said bill and cross bill respectively, by propounding certain interrogatories to the said Prelate D. Barker, which amendment the chancellor, on May 3, 1892, upon appeal from the rulings of the register by the said Barker and the executors of said Parker, refused and disallowed. On the final submission of the cause, the chancellor decreed that neither the complainant in the original bill, nor the complainant in the cross bill were entitled to relief, and ordered that each of said bills be dismissed. From this decree the complainant in the original bill and the complainant in the cross bill appeal, and assigns as error the disallowing by the court of the amendment to the original and cross bill, which was proposed, and the final decree dismissing the original bill and the cross bill.

Shelton Sims, for appellant Ann E. McCaw.

Bestor & Gray, for appellant R. G. Pegram.

HARALSON J.

The original bill was filed June 20, 1891. The answer and cross bill of R. G. Pegram, trustee, was filed July 31, 1891. The original and cross bill, each, waived the oath of the defendants thereto, and neither contained interrogatories to any of the defendants, under rule 13 chancery practice. The answers and demurrers of the other defendants to the bill were filed in the month of August, 1891. On the 17th March, 1892, the complainants in the original and cross bills, filed separate motions, to allow them to amend their bills, respectively, by adding thereto certain interrogatories to P. D. Barker, a defendant to each of said bills, and requiring his answer thereto under oath. This amendment was allowed at rules by the register, from which order the defendants, Barker, and the executors of Duncan T. Parker, appealed, and on May 3, 1892, the chancellor rendered a decision reversing and annulling the order of the register, and ordering that the said amendments to the original and cross bills, be disallowed; but, by leave of the court, said bills were each amended by adding to them the same interrogatories to said P. D. Barker, but waiving the oath of said Barker thereto.

1. The proposed amendments came under section 3449 of the Code, and were not allowable as a matter of right. They had no reference to "striking out or adding new parties, or to meet any state of the evidence which will [would] authorize relief." Ex parte Ashurst, 100 Ala. 573, 13 So. 542. No harm was done the complainants, since they might have availed themselves of the answers to the questions desired, and obtained the same information by propounding the same questions to the defendant, Barker, on his examination as a witness. Neither the bill nor cross bill was filed for a discovery, and contains none of the elements of such a bill either under the statute (Code 1886, §§ 3541, 3545), or under the general jurisdiction of equity in such cases, and neither contains any of the necessary allegations for the maintenance of such a bill, nor did the proposed amendments, if that fact were of any consequence,...