Nelson v. Kelly

• Decision Date: 13 January 1891
• Citation: 91 Ala. 569,8 So. 690
• Parties: NELSON v. KELLY ET AL.
• Court: Alabama Supreme Court

8 So. 690

91 Ala. 569

NELSON v. KELLY ET AL.

Supreme Court of Alabama

January 13, 1891

Appeal from city court of Decatur; W. H. SIMPSON, Judge.

The bill in this case was filed by the appellant, George A Nelson, against the appellees, Mary and Edith Kelly and others. The purpose of the bill, and the facts as disclosed in the record, are sufficiently set out in the opinion of this court. On the final hearing upon the pleadings and proof the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered his bill dismissed; and it is from this decree that the present appeal is prosecuted and the same is assigned as error.

E W. Godbey, for appellant.

Wert & Speake, for appellees.

CLOPTON J.

Appellant seeks by the bill to enjoin an action of ejectment, brought by the defendants to recover possession of the lot in controversy, to divest title out of two of the defendants, Mary and Edith Kelly, and invest the same in him, and for a sale of the premises for partition between him and the other defendants. There is also a prayer for general relief. As the bill only seeks affirmative relief against Mary and Edith Kelly, and as the other defendants do not contest complanant's right to relief, when we hereafter speak of defendants we refer only to Mary and Edith Kelly. The case, as made by the bill, is: The lot was assessed for taxes in 1873 as the property of Fink Kelly, a brother of the defendants, who died intestate. The taxes being unpaid, it was sold in May, 1874, and purchased by B. F. Ponder, to whom the judge of probate made a deed, under the statute, March 24, 1879. About a month thereafter Ponder sold and conveyed the lot to H. S. Freeman. Defendants being in possession of the lot after the death of Fink Kelly, Freeman pressed them for payment of the amount which he had expended in the purchase of the lot, or for possession of the same. Defendants, not disputing his right to the possession or to reimbursement of the sum expended by him, and apprehending that he would eject them, endeavored to obtain from several persons the money necessary to pay Freeman. Failing to do so, they applied in January, 1885, to complainant to advance the money, which he did, taking from Freeman a conveyance to the lot. The arrangement or agreement under which this was done is thus averred in the bill: "Such being the state of affairs, and not being able to induce any one else to come to their relief, the said defendants Mary and Edith, in January, 1885, applied to your orator for money to pay H. S. Freeman his claim of one hundred and twenty dollars, under and by virtue of said Freeman's tax-deed from Ponder to the aforesaid premises, and as an inducement to you orator the said Mary and Edith represented to your orator that they were the sole heirs to said property; that said Freeman had threatened to eject them from said property, unless said sum of money should be immediately forthcoming, and that they feared he would make good his threat to do so; that their attorney, S. T. Wert, had advised them that Freeman must have either the said lot or said sum of money, (one hundred and twenty dollars;) and then and there promised, in consideration that your orator would buy said Freeman's claim and said property, and permit them, the said Mary and Edith, to remain on said property and cultivate the same, that your orator might erect an office thereon, and use so much of the said premises as he might require, (your orator was then and is now engaged in the real estate business at Decatur;) and they further promised that, if your orator would buy said Freeman's claim against said lot, they would during the then current year refund to him said sum of money, and would offer no objection to any office your orator might build, remaining thereon so long as your orator might desire, and that, unless they complied with their promise to refund said sum of money in manner and form as stipulated, then the entire lot, as occupied by them, should become and forever remain the property of your orator." The bill further alleges that complainant, relying upon the representations, inducements, and promises of the defendants, and being ignorant of the state of the title, purchased the lot from Freeman, without investigation of his claim or title, and received a conveyance thereto, at the request of the defendants, erected an office building thereon, entered into possession thereof, and occupied the same without objection by the defendants. The answer of the defendants, which was sworn to, denies the material allegations of the bill, and avers that defendants always denied Freeman's right to the property; that they told complainant that he had no right thereto; and never consented to pay him anything.

An examination and comparison of the testimony of the several witnesses pro and con satisfactorily shows that the evidence supports the substantial averments of the bill. Complainant testifies to the request, inducements, and agreement under which he advanced the money to Freeman, and took the conveyance from him, and is corroborated by the testimony of several witnesses, who testify to the admissions and declarations of defendants, some of whom also prove that defendants applied to them to furnish the money with which to pay Freeman, and one of whom, Edwards, referred defendants to complainant, who would probably buy the lot for them. Complainant's testimony as to the arrangement is contradicted only by the defendants. In their examination as witnesses they contradict and disprove material denials of their answer. Edith testifies that she never denied Freeman's claim to the lot; that she told Mary to get the money and pay him, and she would help her all she could; and Mary testifies that she went to Birmingham to work, to pay Freeman what she owed him, thinking it was her duty. The denial of the answer that Freeman ever pressed them for the money is not only contradicted by Freeman and other witnesses, but Edith also states that he told them that they would have to pay or get out, and further, that they promised to pay complainant the money he paid Freeman. Defendants do not undertake to deny the testimony of the other witnesses as to their admissions and declarations, and efforts to induce others to furnish the money to pay Freeman's claim. The contradictions of their sworn answer by their own evidence, and the conflicts in their respective testimony, greatly impair their credibility, and disentitle their evidence to consideration. W...