Nelson v. Brown

• Citation: 164 Ala. 397,51 So. 360
• Parties: NELSON v. BROWN. BROWN v. NELSON.
• Decision Date: 12 January 1910
• Court: Supreme Court of Alabama

51 So. 360

164 Ala. 397

NELSON v. BROWN.

BROWN v. NELSON.

Supreme Court of Alabama

January 12, 1910

Appeal from Chancery Court, Tuscaloosa County; A. H. Benners Chancellor.

Suit by Mary E. Nelson against Joe D. Brown. From a decree granting insufficient relief, complainant appeals, and defendant cross-appeals. Affirmed on both appeals.

Henry Fitts, for appellant and cross-appellee. Ormond Somerville for appellee and cross-appellant.

SAYRE J.

Appellant now married a second time, and Squire D. Brown, now deceased, intermarried on February 23, 1894. Appellee is the son of deceased by a former marriage. Prior to his second marriage Squire D., by a deed bearing date December 1, 1892, on a recited consideration of $6,000, conveyed to appellee substantially all his real property, consisting of about 2,000 acres of land in the county of Tuscaloosa. Squire D. died in March, 1905. In June, 1906, appellant, on the recited consideration of $100 and love and affection, executed to Joe D. a quitclaim of all her interest in the lands of her deceased husband, including some pieces which had been omitted from the conveyance by her husband or had been since acquired. The bill was filed in March, 1908, and prayed that the deed from Squire D. be vacated and annulled and held for naught as in fraud of her marital rights; that dower be assigned and homestead set apart; that the quitclaim be set aside as procured by undue influence, and for an accounting of the personal estate of the complainant's deceased husband. The chancellor wrote a decree sustaining the deed by the deceased husband, but annulling the later quitclaim, and granting other relief. From that decree by appeal and cross-appeal the cause is brought here for review.

In respect to the deed executed by the deceased, the appellant's first proposition is that it was secretly made pending the treaty of marriage between deceased and herself, and in fraud of her subsequently acquired marital rights. The subject of the rights of a wife under the circumstances here affirmed by the appellant had careful and repeated consideration by this court in Kelly v. McGrath, 70 Ala. 75, 45 Am. Rep. 75. It was there determined that a conveyance of his lands by the husband, executed in contemplation of marriage, without the knowledge of his intended wife, and intended to prevent her rights of dower and homestead from attaching to the lands, is a fraud upon the rights of the wife on marriage, against which a court of equity will grant relief. The general principle so announced is not now drawn into question, but the parties are in irreconcilable conflict over the facts which would bring appellant's case under the influence of the principle stated. The proof as to the time from which the engagement of marriage must be dated not unnaturally rests upon the sole testimony of the appellant, and is subject only to such discredit as may arise from interest, some evident errors into which she has fallen in respect to other matters, and the alleged general lack of verisimilitude in her story. She fixes the date when Squire D. Brown began to visit her in May, 1893, and of the engagement to marry in July of the same year. The marriage was solemnized about seven months later. The deed complained of bears date, as we have seen, December 1, 1892. Appellant's contention is that it was, in fact, executed and delivered in the fall of 1893, and antedated so as to carry into effect the purpose common to her intended husband and his son by a former marriage, then a man of about the same age with the appellant. Appellee's contention is that the evidence affords no sufficient justification for a decree which would fix the date of the execution of the deed at a time different from that shown on its face. When there are no indications of falsity on the face of a deed, the presumption of law is that it has been executed upon the day of its date. This presumption is controllable, of course, by evidence aliunde, but the mere suggestion of fraud or falsity does not put upon the party producing it the burden of proving that the deed was actually made upon the day of its date. Smith v. Porter, 10 Gray (Mass.) 66; Pullen v. Hutchinson, 25 Me. 249; Costigan v. Gould, 5 Denio (N. Y.) 290; McFarlane v. Louden, 99 Wis. 620, 75 N.W. 394, 67 Am. St. Rep. 883; Conley v. Finn, 171 Mass. 70, 50 N.E. 460, 68 Am. St. Rep. 399; Aldridge v. Bank of Decatur, 17 Ala. 47; Hauerwas v. Goodloe, 101 Ala. 162, 13 So. 167. It would serve no useful purpose to enter upon a discussion in detail of the voluminous testimony and the widely variant estimates put upon it by opposing counsel, nor is it permissible that this opinion be spread over the pages necessary to contain such a discussion.

The testimony has had careful consideration, and with this, and some observations on its broadest phases, the parties must be content. It appears that months before Squire D. Brown began to visit appellant an occasion arose upon which men frequently hunt cover for their property. He was surety on the official bond of King, the sheriff of Tuscaloosa county against whom a summary motion was pending and other suits threatened as he knew. In the fall of 1892 King was approaching the end of his term as sheriff, and had been elected clerk of the circuit court. Squire D. Brown consulted an attorney as to how he might evade liability. Being informed that no evasion was possible, he announced his expectation that he would be requested to sign King's bond as circuit clerk, his inability to refuse him, and his determination to evade the risk by conveying his property to his son Joe, so that it would be safe from such liability, and to this attorney he announced at a time prior to his second marriage that he had conveyed his property. In April, 1893, Brown signed the bond of King as circuit clerk. In the spring of that year the grand jury was investigating the solvency of King's bond, and at that time Brown stated to the witness Kyle, who has since then served a term as sheriff of the county, that he had given his property to his son Joe. There does not appear to be the slightest reason for doubting the perfect candor of Judge Foster or Sheriff Kyle, the two witnesses who established the foregoing facts. If the occasion arose which would reasonably account for the grantor's conveyance of his property at the time it purports to have been made, on a theory totally different from that propounded by the appellant, and he then announced his desire to have it made for the purpose of meeting that occasion, and subsequently declared that his purpose had been carried into effect, and all this transpired before the time when, so far as the evidence shows, he may have conceived the notion of marrying appellant--certainly before the agreement to marry--it would seem to require some cogent countervailing evidence to induce the conclusion that the grantor had not accomplished so easily attainable a purpose when and as he desired. The general conclusion that Squire D. Brown conveyed his property to his son, the appellee, in the fall of 1892 or the winter of 1892-93, is also borne out by the testimony of the appellee, and that of the witnesses Collins, Anna Brown, Riley, Duren, and Keene, who establish the fact as clearly as might in reason be expected after the lapse of 16 years, during which the matter had not been brought into question. We do not mean to suggest that the testimony to sustain appellee's case is without discrepancies. Appellant, indeed, plants her case as to this deed in large part upon the lapses of the witnesses Collins and Anna Brown. But in our opinion the appellant's argument just here is too critical. It requires too much of the appellee. It concedes too little of honest purpose to appellee's witnesses. It leaves out of account that appellee and his witnesses cannot be expected to testify to an old transaction with as accurate recollection as might be expected of Squire D. Brown if he were able to testify in his own behalf. To us there does not seem to be any serious reason for doubting that the general effect of the testimony of the other witnesses is to sustain the inference necessarily following from the testimony of Foster and Kyle. In this connection we have considered also (1) the fact that the lands in question were assessed to Squire D. Brown for taxation during the year 1893; (2) that Squire D. took a deed of 40 acres from one Sellers on December 6, 1892, which land was not included in the deed in controversy; and (3) that the deed in controversy included 200 acres of land, a deed for which Squire D. took from H. B. Foster on May 1, 1893. There is probative force in these facts, but it is by no means overwhelming, and is...