Oxford v. Estes

• Decision Date: 11 October 1934
• Docket Number: 5 Div. 116.
• Citation: 229 Ala. 606,158 So. 534
• Parties: OXFORD et al. v. ESTES et al.
• Court: Alabama Supreme Court

158 So. 534

229 Ala. 606

OXFORD et al. v. ESTES et al.

5 Div. 116.

Supreme Court of Alabama

October 11, 1934

Rehearing Denied Jan. 24, 1935.

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Bill by John Estes and others against Norma Oxford and others to remove administration into equity court and to sell lands for division, and cross-bill by respondent Oxford and others. From a decree denying relief under the cross-bill cross-complainants appeal.

Affirmed.

Jas. W Strother, of Dadeville, for appellants.

Chas F. Douglass, of Anniston, for appellees.

BOULDIN Justice.

James M. Allen died intestate March 1, 1925. He was never married. His heirs are his living sisters, and the descendants of deceased brothers and sisters.

Some of these heirs filed a bill to remove the administration of the estate into the equity court and to sell the real estate for division.

On May 29, 1926, some of the respondents filed a cross-bill, denying that certain parcels of the land were owned by decedent at the time of his death, and setting up title in themselves as heirs and devisees of David G. Allen, a deceased brother of J. M. Allen.

The case, therefore, involves the title to two pieces of real estate, which, for present purposes, are sufficiently designated as a farm of 300 acres, located on the Opelika road near Lafayette, and one residence lot in Lafayette, known as the Homer Hines lot.

Without dispute, the title to the lands was in D. G. Allen at the time of his death, September, 1893.

The course of events presented in pleading and proof during the thirty-two years intervening between the death of D. G. Allen and the death of J. M. Allen (who, at that time and long prior thereto, had been in the actual, open possession of the property, claiming it as his own) is a long, involved story.

We outline such features as appear to us controlling on this appeal.

D. G. Allen, at his death in 1893, left a large estate, much involved in debt. He had been for many years engaged in a mercantile business under the firm name of D. G. Allen & Bro. J. M. Allen was the brother. D. G. Allen left a will, devising the body of his estate, including this property, after payment of debts, to his wife, Fannie Allen, and their three children, then of tender years.

He directed and empowered his executors to continue the mercantile business for a period of five years, with full power to sell personal and real property, etc.

Item 8 of the will read: "I hereby appoint James M. Allen and George E. Burnett, executors of my will, and, having confidence in their honesty, I exempt them from giving bond or security as such and I also hereby appoint said James M. Allen and George E. Burnett, the guardians of my three children, Annie Lemerle Allen, Norma Gunn Allen, and David G. Allen, Jr., and I exempt them as such guardians from giving bond or security as such guardians. I direct that my executors shall not be required to make inventory or appraisement to the Probate Court or to obtain any order for the sale of any property or to make any settlement in said Court."

The wives of Mr. Burnett and D. G. Allen were sisters.

Mr. Burnett was connected with the business as bookkeeper prior to D. G. Allen's death. He is the only one of the actors of those times now living.

The executors proceeded to carry on and gradually wind up the business, and, after some seven or eight years, had succeeded in paying all the indebtedness, aggregating (according to Mr. Burnett, testifying after the lapse of some thirty years) the sum of $85,000. The books and papers relating to the business, with uncollectible notes and accounts, were then turned over to, or taken over by the widow, Fannie Allen, and have remained under the control of herself or children, as they arrived at maturity, until this suit was filed.

Among the creditors was R. F. Gilder, to whom the firm was largely indebted for borrowed money, apparently at usurious rates of interest.

On January 19, 1897, the farm lands here involved were sold and conveyed by the executors to R. F. Gilder for $2,600. This deed was recorded in 1901. Contemporaneous with such conveyance, Gilder executed to the executors a defeasance or option to repurchase at the same price on or before December 1, 1897.

This option was not exercised before the date named, but on November 28, 1898, Gilder executed a deed to J. M. Allen on a recited consideration of $2,600. This deed was not recorded until after the death of J. M. Allen. It appears that some other deeds to him were left unrecorded. It further appears that at the time Gilder purchased the land, he also rented it to the executors, and they paid rents for years 1897, 1898, and 1899, and by complainants' calculations, it appears this was on a basis of 1 per cent. of $2,600 per month for 1897, 10 per cent. for the year 1898, and 8 per cent. for the year 1899. Several receipts from Gilder to J. M. Allen dated September to December, 1899, show payments, "to be credited on note," aggregating $1,750.

Gilder is also dead, and all that is known of the transaction consists of available documents with some evidence from witnesses touching matters more than a quarter of a century in the past. Altogether this evidence indicates that Gilder did not want the land, that the executors were pressing him to take it under threat of pleading usury, that Jim Allen finally repurchased the land, giving his note, and getting a deed, and making payment later. It appears that this land was in part assessed for taxes to Gilder down to 1908 and part to J. M. Allen. Thereafter taxes on the entire tract were assessed to and paid by J. M. Allen, down to his death in 1925.

In any event, the documents show the legal title passed out of the estate, and the executors as such, in 1897, and the evidence fully shows that J. M. Allen was in the exclusive actual possession, claiming as his own, and enjoying the income and profits therefrom during the twenty-five years after the possessory rights of Gilder ended.

Respondents to the cross-bill, appellees here, set up title by deed, also prescription, laches, and statute of limitations.

Appellants, in their pleadings, allege a number of grounds for claiming the property in equity. Among them, it is said the transaction between the executors and Gilder was in effect a mortgage, and J. M. Allen, on his purchase, took the position of a mortgagee in possession, liable to account for rents, alleged to be sufficient to pay the mortgage debt.

We note a further allegation that the lapse of twenty years creates a bar by prescription against any lien or right of foreclosure under the mortgage. Very true, the mortgage in this case, if so viewed, dates back to 1898, and all right of the mortgagee to foreclose would be barred by twenty years' prescription.

But the suggestion overlooks the reciprocal rule that a like period of possession by a mortgagee without recognition of any equity of redemption bars the equity of redemption, and vests complete title in the mortgagee. 42 C.J., page 382, § 2146.

Again, it is argued, that if J. M. Allen bought and paid for this land with his own funds, he was, at the time, a trustee of an express trust in possession of same as such, and his title, at the election of the cestuis que trust, must be treated in equity as held in trust for them.

Again, it is argued that the executors sold these lands to pay a firm debt, that the firm was largely indebted to D. G. Allen's estate, that J. M. Allen was indebted to the firm, that it was, therefore, his duty to pay this Gilder debt against his firm, and that equity should treat the entire transaction, sale, and repurchase, as restoring the property to the estate of his brother as at the beginning.

Still further, it is alleged that J. M. Allen did not pay for the land of his own means, but paid Gilder from funds in the hands of the executors; that the transaction was a fraudulent scheme whereby J. M. Allen obtained a deed in his own name, concealed by keeping it off the record; that his possession originated as trustee of an express trust; that there was no change of actual possession; and no knowledge ever brought home to the cestui que trustent of any adverse holding until after his death.

In dealing with these several asserted grounds of relief, and excuses for delay, certain tendencies of the evidence, much obscured by time and death of parties, will be noted.

There is no substantial evidence that the purchase price paid Gilder was funds of the partnership or of the estate of D. G. Allen. At this late date the documents, including the receipts issued to J. M. Allen, should be taken to speak the truth.

As for the state of the partnership accounts as between the partners, this could be ascertained only upon a settlement of the partnership. There is no effort to do this. At this late date, and in view of its long continuance, such accounting would be manifestly impracticable.

To single out specific accounts covering dealings of the executors while continuing the business, wherein an account was kept of funds received by the firm from the estate of D. G. Allen, and his estate charged with supplies furnished his family during the years the business was continued, and the account against J. M. Allen during the same period, could not, as of course, prove the state of accounts between the partners upon a partnership settlement.

As to J. M. Allen's account, it seems to represent all that he got for the many years devoted to the responsibilities and work of an executor and trustee under the will. The record really presents an issue of fact as to whether J. M. Allen ever was a partner inter sese. Without question, he was a partner as to the public. But testimony...