Olds v. Marshall

• Decision Date: 05 November 1890
• Citation: 93 Ala. 138,8 So. 284
• Parties: OLDS v. MARSHALL.
• Court: Alabama Supreme Court

8 So. 284

93 Ala. 138

OLDS v. MARSHALL.

Supreme Court of Alabama

November 5, 1890

Appeal from chancery court, Jackson county; THOMAS COBBS Chancellor.

J E. Brown and Watts & Son, for appellant.

R C. Brickell, for appellee.

STONE C.J.

The complainant and defendant are brother and sister. A Marshall, their father, was the original owner of the land, the subject of this suit, and lived on it until his death in 1886. In 1879, the land was sold, under a decree in chancery, to satisfy a judgment debt of A. Marshall, the father, and Washington became the purchaser, bidding and paying the amount of the judgment under which it was sold. It does not appear that Washington ever obtained possession of the land. Just before the expiration of the two years after the sale, the land was redeemed from Washington. At that time A. Marshall was so afflicted with disease, and disabled, as to be incapable of attending to business. The son, G. Humphrey Marshall, lived with his father during all that time, and attended to his business. G. Humphrey carried the money to Washington, and redeemed the land, and took the latter's deed in his own name as grantee. This deed was not recorded, and it is not shown that the father knew it had been made to the son until shortly before his death, when he complained of it to his son. The title is still in G. Humphrey Marshall, and he is in possession. In 1868, A. Marshall, the father, conveyed the land in controversy to his daughter, the complainant in this suit. She was then unmarried. She subsequently married Olds, and is now his widow. She filed this bill in her own name, and prays that the title of the land be divested out of G. Humphrey Marshall, and vested in her. The asserted state of facts and law on which she founds this claim, and prays for this relief, may be stated as follows: First. That the deed from her father to her contains covenants of warranty, both implied and express, and is founded on a recited money consideration; that this, as between the parties, is a deed on valuable consideration, as distinguished from one merely voluntary, and constitutes the complainant a purchaser, not a donee. This legal position is well taken. Bolling v. Munchus, 65 Ala. 558; Rutledge v. Townsend, 38 Ala. 706; Lawrence v. McCalmont, 2 How. 426, 445, 15 Curt. Dec. 178. Second. That, whatever title and right to the land the father, A. Marshall, acquired, after he executed the deed to the complainant, vested instantly in her, by virtue of the covenants in his deed to her. This position is also well taken. Chapman v. Abrahams, 61 Ala. 108, 114; Blakeslee v. Insurance Co., 57 Ala. 205. Third. That the redemption of the land from Washington, though effected through G. Humphrey, was really with the money of A. Marshall, and title taken in the name of the son, without the knowledge, and against the consent, of the father. If this be so, there is a clear resulting trust in favor of the father, and equity does not hesitate to declare that G. Humphrey Marshall holds the title wrongfully, and in trust for A. Marshall, his father. 3 Brick. Dig. p. 785, §§ 49, 50; Bibb v. Hunter, 79 Ala. 351. On the foregoing postulates of law and fact, it is clear that the complainant, Mrs. Olds, has succeeded to all the rights her father, A. Marshall, could have asserted; and, if she has established the requisite facts, it is no valid objection to her bill that it is filed in her name. If the facts attending the redemption armed A. Marshall with an equity against G. Humphrey Marshall, the deed from A. Marshall to complainant transferred that equity to her.

There is some conflict in the testimony. G. Humphrey Marshall testified that he redeemed the land with his own money, and took the deed to himself, with the consent of his father, and of Washington, from whom it was redeemed. Several witnesses testify, and make it clear beyond all question, that A Marshall furnished $165 of the money, cash, with which the redemption was effected, and their contention is utterly irreconcilable with the son's contention that title was taken in his name, with his father's consent. The last interview with his father, of which we have any testimony, disproves his statement that his father consented that the title should be placed in his name. The testimony of Tally, a disinterested witness, explains the transaction had with him. According to his version, the agreement was had with the father, although the son was present. He trusted the father, and not the son. It was the father who agreed to deliver the crops or produce, and Tally's promise to furnish the requisite funds to perfect the redemption was made to the father. There was, in fact, no loan from Tally. About cotton enough to make him safe in the money he paid out ($228) had already reached him, when he advanced the money. Now, although Humphrey aided in the crop, and...