Moore v. Moore

• Decision Date: 29 March 1951
• Docket Number: 6 Div. 175
• Citation: 51 So.2d 683,255 Ala. 393
• Parties: MOORE v. MOORE et al.
• Court: Alabama Supreme Court

Page 683

51 So.2d 683

255 Ala. 393

MOORE v. MOORE et al.

6 Div. 175.

Supreme Court of Alabama.

March 29, 1951.

Drennen & Drennen, of Birmingham, for appellant.

Gibson & Gibson, of Birmingham, for appellee.

STAKELY, Justice.

The appeal in this case is from a decree of the equity court overruling the demurrer of Joseph G. Moore (appellant) to the bill of complaint as last amended filed by Annie Pettus Moore, individually and as executrix of the estate of David S. Moore, deceased (appellee). The original bill filed by Annie Pettus Moore individually and as executrix of the estate of David S. Moore, deceased, showed that Annie Pettus Moore as such executrix was granted letters testamentary by the Probate Court of Jefferson County, Alabama, on June 21, 1947, that the administration of the aforesaid estate is still pending in the Probate Court of Jefferson County and that Annie Pettus Moore was acting as such executrix at the time of the filing of the bill of complaint.

The original bill further alleged that Annie P. Moore and Joseph G. Moore are the joint owners of a number of separate tracts of land located in Blount County, Alabama, the tracts being respectively described in an exhibit attached to the bill, that Annie Pettus Moore is the owner of an undivided one-half interest in the real estate and that Joseph G. Moore is the owner of an undivided one-half interest in the real estate, and that the real estate cannot be equitably divided or partitioned without a sale thereof.

Lucille Moore, the wife of respondent Joseph G. Moore, was also made a respondent to the original bill there being allegations as to her ownership of dower and homestead rights in the interest of her husband Joseph G. Moore. Her separate demurrer to the bill, as last amended, was sustained and she is no longer a party to the suit.

There was no demurrer to the original bill but by answer the respondents admitted the allegations of the bill except the allegation that the property cannot be equitably divided or partitioned without a sale and by way of cross-bill alleged that they are the joint and equal owners with complainants of certain cattle, mules and farm implements located upon the land which they allege cannot be equitably divided without a sale thereof.

Thereafter a number of amendments were filed to the original bill, it being sufficient to show the allegations of the bill as last amended, because it is from the decree overruling the demurrers of Joseph G. Moore to the bill as last amended that this appeal has been taken.

The bill as last amended shows in brief that David S. Moore died on the 8th day of June, 1947, leaving a last will and testament which was admitted to probate in the Probate Court of Jefferson County, Alabama, on June 21, 1947. A copy of the will is attached as an exhibit to the bill as amended and shows that after the payment of funeral expenses and other debts all the property of the testator was bequeathed to his wife Annie Pettus Moore. She was named as sole executrix of the will without bond.

The bill as last amended further shows that on the 20th day of January, 1945, David S. Moore and the respondent Joseph G. Moore, who were then engaged as partners or joint adventurers in a farming enterprise upon lands contiguous to part of the lands which have been described, entered into an oral agreement for the purchase by them jointly as individuals of a tract of land known as the Daly Land or Dailey Land, this tract of land being one of the tracts described in the original bill. Under the terms of the agreement title to the tract of land was to be taken in the names of David S. Moore and Joseph G. Moore, as joint owners and tenants in common, and each was to pay one-half of the purchase price thereof. Pursuant to the agreement David S. Moore, acting for himself and for Joseph G. Moore, purchased the real estate at public auction and procured from the commissioner appointed to conduct the sale a commissioner's deed thereto in which David S. Moore and Joseph G. Moore were named as grantees, the consideration paid by David S. Moore being in the sum of $2800.

It is further alleged that notwithstanding the prior agreement, Joseph G. Moore did thereafter upon demand fail and refuse to pay and refund to David S. Moore his half of the purchase price of said lands and has continued to fail and refuse to pay and to refund to David S. Moore or to Annie Pettus Moore, as executrix of the estate of David S. Moore, deceased, his agreed half of the purchase price, to wit $1400.

It is further alleged in the amended bill that on the first day of January, 1932, David S. Moore, the deceased husband of Annie Pettus Moore, entered into an oral partnership agreement with respondent Joseph G. Moore, whereby the parties agreed to engage in a farming and livestock raising enterprise and business for profit on certain lands situated in Blount County, Alabama, known as the Clarence Farm, this being in whole or in part the real estate described in the original bill of complaint. Under the terms of the agreement the parties agreed to contribute to the business an equal share of the money and personal property required to be used in and about the operation thereof and to share equally in the profits and losses arising from the business, that thereafter under and by birtue of the agreement the parties engaged together in said farming and livestock business and enterprise on said lands continuously from the day of the agreement until the death of David S. Moore on June 8, 1947, that during the period from the first day of January 1932 up to and including the 8th day of June 1947, inclusive, there resulted substantial losses the total amount of which the complainants do not at this time know, but they do allege for the years 1939 to 1947, inclusive, the further capital investment over operating profit exceeded the sum of to wit $42,000.

The bill further alleges that throughout the period from the beginning of the said business until the death of David S. Moore the capital investment in machinery, equipment, livestock and improvements utilized by the parties for and on account of the aforesaid business, was provided by David S. Moore from his personal funds but despite the agreement to share equally in the investment in capital goods and capital funds for the business, Joseph G. Moore contributed nothing.

It is further alleged that during the period from to wit January 1st, 1939 to June 8th, 1947 the farming and livestock business operated annually at a substantial loss or excess of operating expenses over gross operating revenue, all of which loss was paid by David S. Moore from his personal funds and to none of which Joseph G. Moore contributed and for none of which did he reimburse David S. Moore, despite the agreement to share equally the losses of the business. During said period as a result of the operation of said business David S. Moore paid from his personal funds on account of said losses, the sum of to wit $42,000.

It is further alleged that in addition to the sum paid by David S. Moore as operating losses, he paid during the period from January 1, 1932 through December 31, 1946 the sum of to wit $11,822.18 from his personal funds for farm mechinery and equipment for and on account of said business, and despite his agreement to contribute one-half thereof, Joseph G. Moore contributed nothing and has in no amount reimbursed David S. Moore for his expenditures.

It is further alleged that during the year 1947 from the first day of January until the date of the death of David S. Moore on June 8, 1947 David S. Moore expended from his personal funds for and on account of said business the further sum of $5,467.71 for improvements, capital assets and operating deficit, of which sum Joseph G. Moore, despite his said agreement, has contributed nothing and for which he has made no reimbursement to David S. Moore.

It is further alleged that from the 8th day of June, 1947 to and including the 27th day of February, 1948, respondent Joseph G. Moore as surviving partner, assumed sole management and control of the assets and operation of the business, but did not proceed to convert the assets into money or to pay the debts thereof, but on the other hand continued to operate the same, making numerous purchases, sales and exchanges of personal property and incurring further operating losses in to wit the amount of $1828.19, all of which losses were paid by Annie Pettus Moore, as executrix of the estate of David S. Moore, deceased.

It is further alleged that during this period Joseph G. Moore received and collected certain moneys from the sale of crops and livestock all of which he retained and converted to his individual use and none of which he contributed to the operating losses and for none of which he has accounted as to source or amount despite frequent requests from Annie Pettus Moore as executrix.

It is further alleged that complainants are not informed of the exact amount of money so retained and converted but are informed and believe and upon such information and belief aver that the same exceed the sum of to wit $7,000.

It is further alleged that complainants are not informed of the details, character and amount of the various transactions of Joseph C. Moore in and about the continued operation of the business, which information upon request of Annie P. Moore, as executrix, he has failed or refused to reveal.

It is further alleged that the personal property, which is the subject matter of the respondents' cross bill, is the property of the farming and livestock business which David S. Moore, deceased, and Joseph G. Moore conducted upon the lands described in the original bill known as the Clarence Farm, it being alleged that because of the complicated nature of the affairs of the business and because of the failures of Joseph G. Moore to contribute to the business his proportionate share of capital investment and...