Moseley v. Monteabaro

• Decision Date: 20 April 1944
• Docket Number: 2 Div. 200.
• Parties: MOSELEY v. MONTEABARO et al.
• Court: Alabama Supreme Court

17 So.2d 657

245 Ala. 475

MOSELEY v. MONTEABARO et al.

2 Div. 200.

Supreme Court of Alabama

April 20, 1944

Pettus & Fuller, of Selma, for appellant.

Wilkinson & Wilkinson and Pitts & Pitts, all of Selma, for appellees.

FOSTER, Justice.

This is an appeal from a decree overruling demurrers to a bill of complaint.

The equity sought to be maintained is the removal of an alleged cloud from complainants' title to land described, but not alleging that complainants are in possession of it. The title to the land derived from a will of Ann H. Moseley, who died in March 1871, and whose will was soon afterwards admitted to probate. The will made certain provisions for her husband E.B. Moseley, and her daughter Natalie Moseley (who changed her name to Annie M. Carson, by which name we will refer to her), and other children who died in infancy, and whose interests vested in Annie M. Carson under the will. The will is set out as an exhibit to the bill and contains ambiguous provisions. The bill contains the following averments:

"5. That thereafter and in a certain cause in the chancery court of Dallas County, Alabama, wherein E.B. Moseley was complainant and Annie M. Carson and others were defendants said court did on the 24th day of April, 1912, render a decree construing said will and ascertaining the right, title or interest of E.B. Moseley, Annie M. Carson, Mattie H. Tubb and W.J. Hunter in and to the property above described. The pertinent provisions of said decree are as follows:

" 'That E.B. Moseley has the right to the use and enjoyment of the land described in the pleadings, during his life. That Annie M. Carson, subject to the life estate has a fee absolute, as to the rights of creditors and purchasers but subject to the estate limited there; that is,--it is to go to the children of Mrs. Amelia Hunter, who are Mattie H. Tubb and W.J. Hunter, in the event the power of sale given to Annie M. Carson by the will is not executed, or the land sold for the satisfaction of the debts of Annie M. Carson during the continuance of her estate.'

"That annexed hereto, marked 'Exhibit B' and made a part hereof is a copy of said decree.

"6. Your complainants further aver that subsequent to said decree both Mattie H. Tubb and W.J. Hunter died intestate, and that your complainants are the only children of the said Mattie H Tubb and are nieces of the said W.J. Hunter, who died without issue surviving him, and that your complainants as such children and nieces are the next of kin and only heirs at law of the said Mattie H. Tubb and the said W.J. Hunter and as such inherited from their said mother and uncle their respective interests in the lands herein above described.

"That E.B. Moseley, the husband of Ann H. Moseley, died a number of years ago.

"7. Your complainants allege that Annie M. Carson, the same person as Natalie Moseley, died, without issue of her body surviving her, on or about the 4th day of October, 1943, and your complainants further allege that prior to the death of the said Annie M. Carson, she did convey to Eva Mae Moseley, the respondent herein, by her deed under date of May 18, 1936, the real estate herein above described for a purported consideration of $500.00 cash and other good and valuable considerations."

It then attacks that deed as a fraudulent exercise of the power which the decree of April 24, 1912, supra, declared that she had under the will. The facts on which the fraud is claimed are set forth fully in paragraph 7. They are briefly that Annie M. Carson, by an arrangement with Eva Mae Moseley, her half-sister, and grantee under the power, was to have all rights of and ownership as long as she lived; that the deed was not to take effect until the death of Annie M. Carson, and was without consideration, and in effect was testamentary disposition and an attempt to cut off complainants' interest indirectly; that the land was worth in excess of ten thousand dollars. Eva Mae Moseley is the only respondent.

The argument of appellant in brief has simplified the questions which are sought to be sustained and reduced them to two. First, that appellant is entitled to a trial by jury which is demanded in a written provision attached to the demurrer, on the theory that appellant is in possession of the land, and any right of recovery involves the legal title and that she has a constitutional right to a jury trial. The ground of demurrer which presents that question is embraced in the contention that there is an adequate remedy at law, since complainants are not in possession. And the second contention is like unto it, that complainants being out of possession cannot maintain a suit in equity, which has no other equitable right but that to remove a cloud from title available at law.

It is of course fully settled that unless complainants not in possession have an equitable claim for which a remedy at law is not complete, they cannot maintain a suit to remove a cloud from title, not now considering possible exceptions. And when complainants have an equitable remedy open to them, it may be enforced without a trial by jury except when such trial is provided for by statute. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So.2d 125; Ex parte Baird, 240 Ala. 585, 200 So. 601.

So that appellant's whole contention is settled by the inquiry of whether complainants have an adequate remedy at law.

Complainants rely for their equitable standing upon the case of Davidson v. Brown, 215 Ala. 205, 110 So. 384 followed in Dunn v. Ponceler, 235 Ala. 269, 178 So. 40; Tyler v. Copham, Ala.Sup., 16 So.2d 316. They call attention to a refinement of reasoning in that connection which is said to be determinative of equity jurisdiction. In substance it is this: When it is alleged that fraud is used in respect to the consideration or inducement to the...