Peters Mineral Land Co. v. Hooper

• Citation: 208 Ala. 324,94 So. 606
• Decision Date: 26 October 1922
• Docket Number: 6 Div. 618.
• Parties: PETERS MINERAL LAND CO. v. HOOPER ET AL.
• Court: Supreme Court of Alabama

94 So. 606

208 Ala. 324

PETERS MINERAL LAND CO. v. HOOPER ET AL.

6 Div. 618.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Bill by the Peters Mineral Land Company against John DeB. Hooper and others, to quiet title to lands, etc. From a decree sustaining demurrers to the bill complainant appeals. Affirmed.

Where a sale of land made by the register under decree of chancery was rendered voidable by irregular proceedings, a bill to have the sale set aside, filed nine years after the sale and more than eight years after the proceedings, no sufficient excuse being shown for the delay, is demurrable as a stale demand.

The bill alleges that the complainant is in the peaceable possession of and owns certain lands in Jefferson and Walker counties, Alabama, title to which is deraigned through mesne conveyances from Thomas P. Henley. It is alleged that the lands in question previously belonged to Thomas F. Peters who died in September 1883, leaving a will, a copy of which is made an exhibit to the bill and reads as follows:

"I hereby make this my last will and testament. I desire my friend, James W. Sloss, of Birmingham, Alabama, to take charge of all of my interests in Birmingham, Alabama, and sell the same to the best advantage and pay all due balances, and reserve whatever balance there may be for my grandson, Tom P. Henley.

"I desire that Col. James C. Neely, of Memphis, Tenn., and General E. W. Rucker, of Birmingham, Alabama, to take charge of all my unsold coal and iron lands in the state of Alabama. I think they ought to get $400,000.00 for it. I also desire that they take charge of my interest in the Pratt Coal & Coke Company, and when they have paid all my just debts in Nashville and Memphis, Tennessee, and Birmingham, Alabama, they will turn over the balance to James W. Sloss, who I hereby appoint as guardian of my grandson, Tom P. Henley, to be managed and held for my said grandson, Tom P. Henley by said James W. Sloss as his guardian until he becomes of age; I also desire that James H. Polk, of Maury county, Tennessee, take charge of a certain tract of land about 18,000 acres in Henry county Tennessee, which he has bought from Robert Houssel or sell the lands to the best advantage possible as he may see fit; I also will and bequest to my brother Dr. George B. Peters one-third of my estate in the Indus Mining Company of New Mexico; I also will and bequeath to my nephew George B. Peters one-third of my interest in the same; I also will and bequeath to my sister Ann Young one- third of my estate in the same; I also will and bequeath to Mary P. McElderry and Frank N. Iron, of Alabama, one-half of my entire interest in the San Francisco mine, of the state of Chihuahua, Mexico; I also will and bequeath one-fourth of my entire interest in the same to my niece, Lucy P. Cobb; the remaining one-fourth I will and bequeath to my friend Henry L. Wheeler, of Birmingham, Alabama, for his services and great fidelity to me and mine. All these bequests it is understood are not available until all my debts are paid. I further will and bequeath to William H. Woodward, of Birmingham, one-half of my entire interest in the old cap-Alquin mine in the state of Durango, Mexico. He is entitled to this by contract made several years ago between myself and him, and I request the new company to issue to him the amount in reduced stock according to the present capitalization. The remaining one-half to be divided equally between my brother George B. Peters, and my grandson Tom P. Henley.

"Finally all these in whom I have intrusted these responsibilities I request the courts will not require to give any security.

"Therefore I commit my body to the earth from whence it came trusting in the merits of my blessed Savior for my eternal salvation.

"Thomas Peters."

It is alleged that Thomas P. Henley was a grandson of said Thomas Peters, deceased, the sole heir of his estate, and beneficiary of the lands in question.

It is further alleged that the trustees and executors named in the will declined to act, and that in December, 1883, Joseph F. Johnston was appointed administrator with the will annexed, by the probate court of Jefferson county; that in July, 1884, the administration was removed into equity under a decree in the case of Johnston, Administrator, v. Pratt Coal & Iron Company; that Johnston made final settlement, and was discharged by the chancery court in January, 1885; that in January, 1901, said Johnston filed petition in the probate court for appointment as administrator de bonis non of said estate, reciting that new assets had been discovered, that the estate was insolvent; and that the debts had not been paid; that Johnston was so appointed; that as administrator he paid off all debts; and that there is no outstanding indebtedness against the estate. It is averred that in December, 1902, Johnston filed in the chancery court a petition to reinstate the cause of Johnston, administrator, against Pratt Coal & Iron Company and to procure an order in said cause for the sale of the lands in question; that the chancery court reinstated the cause, and entered a decree for the sale of the lands; that Johnston in November, 1903, sold said lands to W. C. Shackelford for $400; and that said sale was confirmed by the chancery court. It is alleged that, prior to the filing of petition by Johnston for appointment as administrator de bonis non, he entered into an agreement with respondent Hooper, under which Hooper undertook to look up lands belonging to Thomas F. Peters at the time of his death, and report the same to Johnston, and that Johnston agreed to allow Hooper one-fourth of the proceeds derived from such lands; that Hooper reported to Johnston that said Peters had some interest in the lands in question; that Hooper entered into an agreement with W. C. Shackelford and J. K. Brockman whereby Shackelford would become the purchaser of said lands at the sale by the administrator, holding title for Hooper and Brockman, and that the proceeds should be divided, Hooper one-half, and Brockman and Shackelford each one-fourth. It is alleged that this agreement was put in writing in November, 1903, but was not recorded until January, 1913, and that the complainant did not discover said agreement until six months before the filing of his bill. It is alleged that the lands so sold by the administrator de bonis non to Shackelford were reasonably worth $30,000, which fact was known to the administrator, to Hooper, and to the purchasers, and that the amount for which the lands were sold, $400, was grossly inadequate; that Hooper, who undertook to represent the administrator de bonis non, received pay from the administrator on account of this sale, and also received one-half interest in the lands.

It is alleged that the probate court was without jurisdiction to appoint Johnston as administrator de bonis non, for the reason that the estate had already been removed into the chancery court.

The prayer is that the appointment of Johnston as administrator de bonis non and all proceedings thereunder be declared void; that the price paid by Shackelford for the lands in question be decreed grossly inadequate; that Hooper did not in good faith carry out his agreement with the administrator, but fraudulently and secretly acquired an interest in the lands; that Shackelford and Brockman participated in Hooper's breach of duty; that said sale be declared fraudulent and void; and that the decree of confirmation be set aside.

Hood & Murphree, of Gadsden, and Smith & McCary, of Birmingham, for appellant.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellees.

THOMAS J.

The trial court sustained demurrers to the bill, and complainant appeals.

The duties and powers conferred by the will of Thomas Peters, deceased, upon James C. Neely and E. W. Rucker were not personal, and were exercisable by the administrator de bonis non cum testamento annexo, and passed to such representative the properties in question for the purposes of administration-to pay "all my [testator's] just debts in Nashville and Memphis, Tennessee, and Birmingham, Alabama"-and the balance of the proceeds was required by the will to be turned over to James W. Sloss, as guardian of Tom P. Henley, Pearce v. Pearce, 199 Ala. 491, 74 So. 952; Ralls v. Johnson, 200 Ala. 178, 75 So. 926; Jemison v. Brasher, 202 Ala. 578, 81 So. 80. It may be that when the several provisions of Mr. Peters' will are considered together for ascertainment from that instrument of testator's intent, by the rule of equitable conversion the lands are treated as personal property, and should have been administered as such. Goodwin v. Cassels (Ala. Sup.) 93 So. 405; Henley v. Rucker (Ala. Sup.) 93 So. 879; Hibler v. Oliver, 193 Ala. 369, 69 So. 477. However this may be, the bill alleges that the trustees did not accept the trust; and the construction of the will in this respect was before the court in Rucker v. T. C. I. & R. Co., 176 Ala. 456, 465, 58 So. 465; Cruikshank v. Luttrell, 67 Ala. 318.

The bill does not aver that Hooper assumed any obligation to the administrator, Johnston, except to "look up" lands belonging to the Peters estate at the time of the death of testator and report to him the result of his investigation. This was fully done so far as this pleading discloses. The former relation as such agent did not preclude Hooper from thereafter acquiring an interest in the lands of that estate at administrator's public sale, in the absence of averment that Hooper fraudulently concealed from his principal any material fact as to same, or that he did not fully and faithfully discharge his duties in that behalf in relation to the subject...