Oglesby v. Thomas

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 204.
• Parties: OGLESBY v. THOMAS.
• Court: Alabama Supreme Court

16 So.2d 320

245 Ala. 133

OGLESBY v. THOMAS.

6 Div. 204.

Supreme Court of Alabama

January 13, 1944

Appeal from Circuit Court, Jefferson County; E. M. Creel Judge.

The bill alleges that the conveyance sought to be cancelled appears of record in the office of the Judge of probate of Jefferson County, Alabama, in Deed Book 3203, at Page 322, "which record complainant here refers to, and adopts as a part of this bill as much so, and as fully, as if the same were here set out in toto."

The following are grounds of the demurrer.

"2. For that the bill of complaint is prolix."

"4. The deed sought to be set aside is not sufficiently described."

"7. For that reference to the record of the recorded deed without attaching a copy of same to the complaint is insufficient to make said deed an exhibit to the bill of complaint."

Thos Seay, of Birmingham, for appellant.

J B. Ivey, of Birmingham, for appellee.

BROWN Justice.

The court overruled the defendant's demurrer to the bill, allowed the defendant twenty days to answer, and defendant appealed.

The bill is filed by the grantor under the provisions of Code 1940, Tit. 20, § 15, which provides: "Any conveyance of realty, of which a material part of the consideration is the agreement of the grantee to support the grantor during life, is void at the option of the grantor, except as to bona fide purchasers for value, lienees, and mortgagees without notice, if, during the life of the grantor he takes proceedings in equity to annul such conveyance."

Fraud is not an essential element of the equitable cause of action provided for in this statute and the proceedings, as the statute indicates, are to rescind the conveyance on statutory grounds, that "a material part of the consideration * * * is the agreement of the grantee to support * * * the grantor, during her life." Bush v. Greer, 235 Ala. 56, 177 So. 341.

As to conveyances made prior to the incorporation of this statute into the Code of 1923, it is not applicable. Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 183.

While the bill does not allege the date of the conveyance, nor is a copy of the deed made exhibit thereto, yet it appears from the allegations of the bill that the complainant's husband, through whom she claims, died after this statute was incorporated into the Code of 1923.

Grounds 2, 4 and 7 of the demurrer are well taken and the court erred in overruling the demurrer which...