Newton v. Roe

Decision Date22 March 1973
Citation275 So.2d 135,290 Ala. 191
PartiesMary Frances NEWTON v. Ernest Edward ROE. SC 43.
CourtAlabama Supreme Court

George S. Brown, Birmingham, for appellant.

H. E. Holladay, Pell City, for appellee.

JONES, Justice.

This is an appeal from a final decree denying the relief sought by the complainant-appellant, Mary Frances Newton, and granting the affirmative prayer of the respondent-appellee, Ernest Edward Roe's cross-bill.

The bill of complaint which originated this suit was a bill for the sale of land for division. The bill averred that the complainant and the respondent were each the owner of an undivided one-half interest in a particularly described 79-acre tract of real property situated in St. Clair County, Alabama. A deed was attached to the bill as an exhibit which showed that on January 30, 1957, one J. J. A. Roe conveyed the subject realty to Ernest Edward Roe and wife, Mary Frances Roe. The bill further averred that complainant was formerly known as Mary Frances Roe at a time when she was married to the respondent; that she and the respondent were divorced in 1963 and since that time the respondent has been in possession of the subject real estate without paying complainant any rent thereon. The bill prayed that upon a final hearing the court enter a decree ordering the subject property sold for division; an account had between the parties of accrued rents and profits; and a reasonable solicitor's fee be allowed complainant from the proceeds of the sale.

Respondent denied in his answer that the complainant had any title or interest in or to the subject property and stated further that at the time of their divorce the complainant and the respondent entered into a property settlement agreement wherein and whereby it was agreed that the complainant would receive title to their house and lot, and that the respondent would receive exclusive title to the 79-acre tract which is the subject of this action. In his answer, the respondent also stated that at the time of the divorce settlement he signed a deed conveying his entire interest in the family residence to the complainant, and that she did likewise convey her entire interest in the subject realty to the respondent but that said latter deed has since been lost. Respondent's answer also contained what could be considered a cross-bill, which prayed that the court decree that the complainant had no right or interest in the subject property and that exclusive title to the subject realty be quieted in the respondent.

After a hearing ore tenus, the trial court found and decreed essentially as follows:

'. . . the Court finds that at the time of the divorce between complainant and respondent . . . it was intended to have been a full and final property settlement between the parties, and that as part of said property settlement the complainant received title to the home and the property upon which same was situated, together with other property, and that as part of the divorce settlement that the respondent was to have received the . . . property subject to these proceedings and that due to an oversight on the part of the attorneys representing the complainant and the respondent in said cause, complainant never executed a deed conveying her interest in said property to the respondent in compliance with the property settlement agreement. Therefore, upon consideration of said testimony and evidence in said cause the Court is of the opinion that the relief prayed for by complainant should be denied, and that the title to said property should be vested in the respondent, Ernest Edward Roe; it is therefore

'ORDERED, ADJUDGED and DECREED by the Court that the complainant Mary Frances Newton, has no right, title, interest and claim in and to . . .

(Description of property)

and that all her right, title, interest and claim be and is hereby divested out of said land.

'It is further ORDERED, ADJUDGED AND DECREED by the Court that the title in fee simple to the above lands be and the same is hereby quieted and is decreed to be vested in Ernest Edward Roe.'

There are six assignments of error all of which are related and which take the following points: (1) the trial court erred in revising or amending a 1963 divorce decree over which it had lost jurisdiction; (2) the trial court erred in holding that a provision existed in a property settlement which was not embodied in the final decree of divorce; and (3) the trial court erred in divesting complainant of her interest in the property and quieting title to same in the respondent.

Upon a careful review of the record in this case, we are at the conclusion that appellant's assignments of error are not well taken. We are unable to agree with appellant's contention that the final decree rendered by the trial court constitutes a revision or amendment of a prior decree. The language of the instant decree certainly does not purport to alter a prior decree in any way and we find no basis in law or fact to so construe said decree.

As to the question of jurisdiction, the...

To continue reading

Request your trial
7 cases
  • Campbell v. Campbell
    • United States
    • Alabama Court of Civil Appeals
    • April 4, 1979
    ...principle that equity is concerned with substance and not form and considers done that which ought to be done. Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973). To allow the wife to raise the statute of frauds in the face of the admitted facts in this case would clearly be placing form ove......
  • East v. East
    • United States
    • Alabama Court of Civil Appeals
    • December 17, 1980
    ...rights. Additionally, the father's contentions as to the complaint could be rejected under authority of Newton v. Roe, 290 Ala. 191, 194, 275 So.2d 135, 137-138 (1973), wherein it was Applying the above stated equitable principles to the present case, we feel the evidence justified the tria......
  • Bond v. EState D. Pylant Ii
    • United States
    • Alabama Court of Civil Appeals
    • September 17, 2010
    ...parcel passed to her upon Pylant's death, by virtue of her right of survivorship. The supreme court's decision in Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973), indicates that the separation agreement was enforceable despite the fact that Pylant and Bethany did not execute deeds to effe......
  • Ford v. Jackson Square, Ltd.
    • United States
    • Alabama Supreme Court
    • June 23, 1989
    ...treat as done that which ought to have been done, if such is necessary to effectuate the true intent of the parties." Newton v. Roe, 290 Ala. 191, 275 So.2d 135 (1973). Briefly, we note that the equitable doctrine of laches does not operate here to bar the action filed by Jackson Square and......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT