McInnis v. Sutton
| Decision Date | 29 October 1953 |
| Docket Number | 4 Div. 660 |
| Citation | 70 So.2d 625,260 Ala. 432 |
| Parties | McINNIS et al. v. SUTTON et al. |
| Court | Alabama Supreme Court |
J. Hubert Farmer, Dothan, for appellants.
W. R. Martin, Ozark, for appellees.
This is a suit in equity which seeks a division of the land and effects of John W. Glenn who died intestate May 27, 1936, owning a certain eighty acres of land and an undivided one-half interest in another forty acres, together with forty head of hogs, one mule, one tractor, one sawmill, a number of cattle, much farm equipment and farm tools. The other undivided half interest in said forty acres was owned by the descendants of John W. Glenn before he died. After his death his heirs owned the three forties. The bill does not allege that no administrator has been appointed on his estate.
A deed dated January 8, 1935, purporting to have been executed by John W. Glenn was in possession of Charlie G. Glenn, one of the heirs, and was recorded May 29, 1937 after decedent's death.
It was alleged and proven to the satisfaction of the trial court that said deed was a forgery made for the purpose of defrauding the claim of a bank against the estate and enabled the grantee to settle that claim for a small part of it.
The bill alleges that after the death of John W. Glenn his heirs designated appellant Charlie G. Glenn to manage the estate for their joint benefit, sell the personal property, look after the timber and rent the land; that he sold the personal property and timber on the land; that Charlie G. Glenn and another respondent Walter J. Glenn have each rented and cultivated a part of the land. The prayer, among other things, is to make Charlie G. Glenn and Walter J. Glenn account for their 'stewartship' of the estate of John W. Glenn, after holding the deed to have been a forgery, and seeks a sale of the land for division.
The cause reached an issue, and it was set down for trial on motion of complainants under Rule 60 of Equity Practice, Code 1940, Tit. 7 Appendix. Complainants proceeded to introduce their evidence, consisting of the testimony of witnesses. Respondents asked for and received an extension of the time for taking their testimony, but did not do so, and the cause was submitted for a decree without any testimony submitted by respondents. There was a final decree in due course, vacating the purported deed dated January 8, 1935, and declaring that Charlie G. Glenn and Walter J. Glenn had been acting as the agents and trustees in the management of the estate of John W. Glenn. A reference was ordered to determine the amount due to said estate or to the heirs of said decedent by virtue of said 'trusteeship thereof and management thereof'. The decree also ordered the land sold for division after adjudging the proportionate interest of each of the heirs of the estate. A motion was made by respondents to vacate and set aside that decree and give them time to take testimony. This motion was denied and overruled by the court.
On the day before the date of the decree there appears a motion by respondents seeking another extension of time in which to take their testimony. It does not appear that this motion was called to the attention of the trial judge until after the date of his final decree. In denying the motion to set aside the final decree the court referred to the original motion (supra) and overruled it. The appeal purports to be from the final decree and from that which denied the motion to vacate the final decree. An appeal does not lie from a decree denying a motion to vacate the final decree, Equity Rule 62, unless it is based on the invalidity of it. Ingalls v. Ingalls, 257 Ala. 521, 59 So.2d 898; Id., Ala.Sup., 65 So.2d 199; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116. That is not the nature of the motion here made. Therefore, that motion cannot be reviewed on this appeal. So that, we cannot consider the second, third and fifth assignments of error.
The first assignment of error relates to the decree overruling appellants' demurrer to the amended bill: the fourth assignment relates to the final decree. In respect to the first assignment, it is argued that the bill as amended shows on its face that the claim is barred by the ten year statute of limitations, and that it also shows that complainants came into court with unclean hands.
The bill is in some respects similar to that in our case of Jones v. Baswell, 246 Ala. 410, 20 So.2d 715. But there is an absence of allegation that there are no debts owing by the estate and that there has been no administration of it, necessary to make the bill free from demurrer insofar as a distribution is sought of the personal effects of the estate. But the demurrer does not go to that defect: neither does the argument. And it has no application to that feature of the bill which seeks a sale of the land for partition.
In this respect the bill in amended paragraph four alleges that after the death of said John W. Glenn, the heirs of his estate being complainants and respondents, by agreement designated Charlie G. Glenn to manage the estate for the benefit of all the joint owners and tenants in common. This...
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Matthews v. Matthews
...unconscionable conduct develops in the course of the trial, the court may apply the 'clean hands' doctrine sua sponte. McInnis v. Sutton, 260 Ala. 432, 435, 70 So.2d 625; Baird v. Howison, 154 Ala. 359, 45 So. 668; Moore v. Hawk, 270 Ala. 684, 688, 121 So.2d 904; 30 C.J.S. Equity § 97, p. 1......
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