Pate v. Pate, 6 Div. 180.

• Decision Date: 19 May 1938
• Docket Number: 6 Div. 180.
• Parties: PATE v. PATE ET AL.
• Court: Alabama Supreme Court

181 So. 750

236 Ala. 320

PATE v. PATE ET AL.

6 Div. 180.

Supreme Court of Alabama

May 19, 1938

Rehearing Denied June 16, 1938.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill in equity by Lula V. Pate against Felix Martin Pate to establish title to real estate, and petition for intervention by R. C Patterson. From a decree granting relief to intervener and complainant, respondent appeals. Revived on death of appellant in the name of A. E. Pate, as administrator of the estate of Felix Martin Pate, deceased.

Affirmed.

Bealle & Mize and Reuben H. Wright, all of Tuscaloosa, for appellant.

Edw deGraffeinreid, of Tuscaloosa, for appellees.

THOMAS Justice.

The testimony in the case was given viva voce before the trial court rendering the decree, and is subject to the intendments that prevail in such a decree rendered on such hearing. Hodge v. Joy, 207 Ala. 198, 92 So. 171; Andrews v. Grey, 199 Ala. 152, 74 So. 62.

The averments of the bill as to the real property in question are as follows:

"That on the 5th day of January, 1933, complainant loaned Six Hundred & No/100 ($600.00) Dollars in money of her own money to R. C. Patterson, a son-in-law of complainant, with which money on said date the said R. C. Patterson purchased from R. H. Loakey and wife, Mandy Loakey, the following described real estate in Tuscaloosa County, Alabama, to-wit: The South Half of the Southwest Quarter (S1/2 of SW1/4) and the Southwest Quarter of the Southeast Quarter (SW1/4 of SE1/4) Section 26, Township 22, Range 12, West, containing 120 acres more or less, lying and being in Tuscaloosa County, Alabama.

"That said sum of Six Hundred & No/100 ($600.00) Dollars was the full purchase price for said property, and that on said date of January 5, 1933, the said R. H. Loakey and Mandy Loakey, his wife, executed and delivered to the said R. C. Patterson a warranty deed conveying the above described property to the said R. C. Patterson.

"That on said date of January 5, 1933, R. C. Patterson and wife, Delia Patterson, did execute and deliver to complainant a mortgage in the amount of Six Hundred & No/100 ($600.00) Dollars, on the above described property, which said mortgage was prepared by Roy Faucette of Northport, Alabama, and executed in his presence by the said R. C. Patterson and wife, Delia Patterson, who also acknowledged before the said Roy Faucette as a Notary Public, that said mortgage was never recorded by complainant but was kept in her possession until the 3rd day of June, 1936."

It is further averred that on June 3, 1936, complainant's oldest son Felix Martin Pate persuaded her to call on Patterson for the above described property, and that conveyance from the latter be made to complainant and Felix Martin Pate, as joint grantees; that Patterson did execute and deliver to her and said Felix Martin Pate a deed to the property, which was understood as cancellation and payment of the mortgage indebtedness from Patterson and wife to complainant; that on the same date Patterson and wife executed and delivered a warranty deed so conveying the property, "The sole consideration of said deed being the extinguishment of said mortgage indebtedness which was owed as above stated by the said R. C. Patterson and wife, Delia Patterson to complainant, said deed being recorded on the 10th day of July, 1936, in Deed Book 179, Page 102 in the office of the Judge of Probate of Tuscaloosa County, Alabama. Also on said date complainant returned to the said R. C. Patterson and Delia Patterson the mortgage above referred to marked paid."

The prayer of the bill was:

"* * * declare in said decree that complainant is the real and sole owner of said property in fee simple and entitled to the possession and control of said property and everything thereon, except the bed and personal effects brought thereon by respondent and his wife; that Your Honor will order possession of said property restored to complainant and will issue an order requiring respondent and his said wife to remove themselves from said house and off of said property forthwith, taking with them only such personal property as they brought with them when they came on said property."

The answer of Felix Martin Pate was that complainant held the mortgage in question and that she "had been unable to collect the interest due her by R. C. Patterson and wife on said mortgage and requested respondent to negotiate with the said R. C. Patterson with the view of securing a deed to said property, that in the event he was successful in his negotiations with Patterson that the complainant would give the respondent title to an undivided one-half interest in and to the same * * *." That he acted on such proposition and secured the deed in question, the "consideration for the execution of said Deed being the amount due on said mortgage to the complainant, which said mortgage was executed on the 5th day of June, 1933." The answer further avers that after the date of the last named deed complainant and respondent spent much money and responden...