Peacock v. Bethea

• Decision Date: 02 March 1907
• Citation: 151 Ala. 141,43 So. 864
• Parties: PEACOCK ET AL. v. BETHEA ET AL.
• Court: Alabama Supreme Court

43 So. 864

151 Ala. 141

PEACOCK ET AL. v. BETHEA ET AL.

Supreme Court of Alabama

March 2, 1907

Rehearing Denied May 14, 1907.

Appeal from Chancery Court, Marengo County; Thomas H. Smith Chancellor.

Action by Bessie L. Peacock and others against Laura C. Bethea and others. From an order sustaining a demurrer to the bill of complaint, plaintiffs appeal. Reversed and remanded.

This was a bill filed by Bessie L. Peacock and others against Laura C. Bethea and others, seeking to have a deed corrected and that certain lands therein described be excluded from the operation of said deed. The bill avers that Mrs. Bethea has brought an ejectment suit in the circuit court of Marengo county, seeking to recover of complainants the lands alleged in the bill to be erroneously included in her deed, and was attempting to dispossess complainants of the land. The bill sets up that the lands in question formed a part of a large tract of land belonging in her lifetime to Mrs. E. W. H Selden, the mother of Mrs. Bethea and of the complainants that by her will Mrs. Selden gave all of the property to her children and to her husband, W. M. Selden, in equal parts except the part known as the "Home Place" and about 100 acres adjoining it, and this she gave especially to her son Joe and daughter Bland Selden, and as to this place she made certain provisions that are fully set out in the bill, but not necessary to be here set out; that after the death of the mother all the complainants and Mrs. Bethea entered into an agreement having for its object the division of the property among the six owners thereof. This agreement is in writing, and is made an exhibit to the bill, and by it all of the lands except the "Home Place," as set out and defined in said agreement, were to be sold and bought in by one of the joint owners, and divided equally afterwards among the six owners. Bland Selden was designated as the one to buy in the property, and in accordance therewith she bought it in for all the persons interested. It was further agreed, in the agreement under which the division was had, that the "Home Place," as defined by the agreement, should not be divided, but should remain as a home for the persons mentioned in the agreement, and should be owned by said persons as tenants in common. Persons were selected to make a division of the property, and did so, and, when made, lots were drawn for the respective shares. Deeds were executed to the several parties for their respective shares. At the time of the execution of these deeds, and for about two years after the delivery of same among the parties, it was not known that any part of the "Home Place" as defined by the agreement was included in any of the shares, and it was agreed that no part of the same was to be included; and upon the discovery by Mrs. Bethea that a part of the "Home Place" was included in her deed, she commenced her ejectment suit to recover it, and in a few days after the ejectment suit was commenced the complainants filed this bill to enjoin the ejectment suit and for a reformation of the deed. It is also averred in the bill that Mrs. Cunningham, another daughter, had conveyed a part of her land; but it is averred in this connection that at the time of the conveyance by her of a part of her land no contention had arisen as to the boundaries of the "Home Place," and that Mrs. Bethea had not asserted any claim of exclusive ownership to any part of the "Home Place." It also appeared from the bill that, while so recognizing the boundaries of said "Home Place," Mrs. Bethea had sold and conveyed a part of the land she had acquired in the division. The bill offered to do...