Park v. Lide

• Decision Date: 08 May 1890
• Parties: PARK v. LIDE. LIDE v. PARK.
• Court: Alabama Supreme Court

7 So. 805

90 Ala. 246

PARK v. LIDE.

LIDE v. PARK.

Supreme Court of Alabama

May 8, 1890

Appeal from city court of Montgomery; THOMAS M. ARRINGTON Chancellor.

Watts & Son and Tompkins & Troy, for complainant.

Graves & Blakey, for defendant.

MCCLELLAN J.

This record does not sufficiently present the action of the chancery court on the demurrer to the bill to enable us to review it. No decree in that behalf appears in the transcript. What seems to be a mere docket memorandum of the chancellor is transcribed; but that is not a decree, but a mere direction of the chancellor to the register, which may or may not have been developed into a decree by formal incorporation into the minutes of the court. We cannot consider assignments of error based on it. Baker v Swift, 87 Ala. 530, 6 South. Rep. 153.

This leaves for consideration only the final decree on the merits of the case. The undisputed facts may be stated as follows: At the inception of the transactions involved here, Alex. McDade owned the tract of land in controversy, containing 1,220 acres, worth about $2,500. He executed three several mortgages on the land to secure the payment of debts,-one to Charles McDade, May 1, 1875, for $720, of which $250 remained unpaid when the facts involved in this dispute transpired; another to his daughter Janie S. McDade, April 12, 1876, for $1,125; and a third to Lemuel W. Park, February 1, 1877, for $728. On April 12,1877, he executed to his said daughter a deed of gift in fee to this land, covering also his personal property, to take effect on his death, which occurred a few days afterwards. Howard P. Park, a brother of L. W., referred to above, in June, 1877, married Janie S. McDade, who died intestate and without issue, and leaving no debts, in May, 1878; her husband having in the mean time taken possession of all the personalty which came to her from her father, and also the tract of land in controversy. Prior to her death, on the 6th and 7th of March, 1878, all of the mortgages, including that made to Janie S. Park, née McDade, were foreclosed under powers of sale contained in them, respectively; and at each sale Robert E. Park, another brother of the defendant, became the purchaser, bidding the amount of the mortgage debt in each instance. Each of the mortgagees executed conveyances to him; the deed of Janie S. Park, however, not being joined in by her husband. On October 11, 1878, Robert E. Park conveyed the land to Howard P. Park on a recited consideration just equal in amount to the aggregate of the several mortgage debts at the time of foreclosure, seven months before. The complainant, Frank W. Lide, was a half-brother of Janie S. Park, deceased, and her only heir at law, except the surviving husband. The bill avers that the defendant, Howard P. Park, before the 6th of March, 1878, had paid off the Charles McDade and L. W. Park mortgages with the proceeds of personal property belonging to his wife, but, by collusion with said mortgagees and Robert E. Park, fraudulently, and, with intent to cut off the rights of the complainant as the heir at law of said Janie S., had these mortgages, though fully satisfied, as also that of his wife, foreclosed; that Robert E. Park, as a part of the fraudulent scheme, became nominally the purchaser, under an agreement to reconvey to Howard P. Park, but that he never paid anything whatever for the land thus purchased to either of said mortgagees. Upon this state of facts, in part confessed, but in other part denied, the theory of the bill is that, the mortgages to McDade and L. W. Park having been paid with the proceeds of her property, they, as well as the one originally executed to her, belonged to said Janie S. Park, and hence said foreclosures were either absolutely void, and did not pass either the legal or equitable title out of her, or, being made under the supervision of her husband and trustee, were for her benefit, and the conveyances thereunder were in fact and law made to Robert E. in trust for her, and the estate, being so held by him at the time of her death, descended to complainant in remainder, the husband having a life-estate by curtesy. The prayer for final relief is that the foreclosure sales and conveyances to R. E. Park, and the conveyance by him to H. P. Park, be set aside, and hell for naught; that the land be decreed to belong to the estate of Janie S. Park; and that complainant be adjudged entitled to a remainder therein after the death of Howard P. Park.

The decree rendered is not in line with the facts thus alleged nor does it round out the theory of the bill, or provide for the relief prayed. On the contrary, it adjudges that the facts alleged have failed of proof; it finds another and different state of facts to be supported by the evidence; and it responds to that other and different state of facts, and grants relief which, whether appropriate to the facts found or not, is not appropriate to the facts alleged. We quite agree with the chancellor that the testimony does not establish that Howard P. Park paid off the McDade and Lemuel Park mortgages before foreclosure out of the proceeds of the wife's property. We are also of the opinion that all the mortgages were subsisting incumbrances on the land at the time they were severally foreclosed. Nor can we find justification in this record for the belief that the transactions involving the foreclosures, whether Robert E. or Howard P. Park was the real purchaser thereat, were infected with any covinous intent to cut off the rights of Lide as the contingent heir of Janie S. Park, if indeed he can be said to have had any rights during her life. We can discover no sufficient motive for such an effort in view of the youth, health, and pregnancy of Janie S., giving promise not only of long life, but of issue in the near future. It is more reasonable to suppose, as one of the parties testified, that "Frank W. Lide was not thought of at that time," or in that...