Pittman v. Pittman

• Decision Date: 20 December 1945
• Docket Number: 4 Div. 388.
• Citation: 25 So.2d 26,247 Ala. 458
• Parties: PITTMAN v. PITTMAN et al.
• Court: Alabama Supreme Court

25 So.2d 26

247 Ala. 458

PITTMAN v. PITTMAN et al.

4 Div. 388.

Supreme Court of Alabama

December 20, 1945

Rehearing Denied March 7, 1946. [Copyrighted Material Omitted]

Moseley & McIlwain, of Union Springs, and Meader, Jones & Murray, of Montgomery, for appellant.

Lawrence K. Andrews and R. E. L. Cope, Jr., both of Union Springs, for appellees.

The bill is in substance as follows:

On December 5, 1882, J. M. Foster, now deceased, grandfather of the parties to the suit, conveyed by deed the lands involved to S. J. Foster (now deceased) in trust for Mary Pittman daughter of the grantor, and mother of complainants and respondents, for the term of her life, and at her death to her children. Another child of Mary Pittman is Anastasia Holmes Pittman, a non compos mentis, whose interest is not here involved. Mary Pittman, now more than 85 years of age is still living and continues to reside upon the lands.

In 1914 ro 1915 James Foster Pittman offered to purchase from complainants and the other respondents the reversionary interest in the land acquired by them as children of Mary Pittman by virtue of said deed of trust, and such interest as they might acquire in the future by descent, inheritance or purchase from said Anastasia Pittman, at a price of $2,000, to be paid upon the death of the life tenant, for which he offered to execute promissory notes payable to complainants and two of the respondents, in the sum of $500 each. All of the parties interested employed one J. T. Norman, an attorney, now deceased, to draft a deed and notes secured by mortgage in keeping with the offer made. Such papers were drawn and the deed was executed by complainants and the other respondents, and the notes and mortgage were executed by respondent James Foster Pittman. During the process of negotiation and prior to the completion of the transaction and delivery of the papers, complainants called upon Norman to deliver to them the deed and to James Foster Pittman his mortgage, in that complainants had decided not to accept the offer of James Foster Pittman. Norman declined to do so without all parties interested being present, but agreed to hold the papers pending instructions of all said parties. During the month of December, 1915, by some manner or means, and without the knowledge or consent of complainants the mortgage executed by James Foster Pittman was placed of record. On December 20, 1927, the attorney J. T. Norman died, and his son, C. D. Norman, came into possession of his files, containing the deed. Learning the whereabouts of the deed complainants made demand upon C. D. Norman for its return to them, but were unable to obtain possession of said deed. Thereupon they requested respondent James Foster Pittman to take necessary steps for the return of the deed to them. Subsequently without the knowledge, consent or authorization of complainants, C. D. Norman delivered said deed to respondent James Foster Pittman, who in turn and without the knowledge, consent or authorization of complainants, and against their will, placed the same of record. It is averred that the notes referred to in said mortgage were not delivered to complainants when said mortgage was recorded, and have not yet been delivered to them; that the lands involved have not inhanced in value since execution of said mortgage and deed, but remains the same as it was at that time; that since obtaining knowledge of the recordation of said deed complainants have made repeated demands upon said James Foster Pittman to take necessary action to remove said deed from the record as a cloud upon their title, but he refuses to take such action and claims title to the land, subject to the life estate, expressing his purpose to take possession upon the falling in of the life estate. It is averred that said deed is void in that same has never been delivered, and it is prayed that same be canceled as a cloud upon complainants' title. There is also a prayer for general relief.

SIMPSON, Justice.

Bill in equity to cancel a deed to defendant, James Foster Pittman (appellant), as a cloud on complainants' title.

General demurrers were interposed assigning laches, the statute of limitations and prescription, the permissible practice if such appears from the face of the bill. Ussery v. Darrow, 238 Ala. 67, 188 So. 885; Lewis v. Belk, 219 Ala. 343, 122 So. 413. This appeal is from the decree overruling the demurrers.

The salient facts presented by the bill will appear in the report of the case but, boiled down, the bill makes a clear showing that pending negotiations between the complainants (who owned the reversionary interest in the property subject to the life estate of their mother) and the respondent, James Foster Pittman (who was seeking to purchase the property), the complainants entirely withdrew from the transaction and before its consummation, while the deed and mortgage were still in possession of the attorney representing the parties, so notified said attorney, who agreed to keep possession of the documents and not to deliver them; that some years later the deed was delivered to the respondent and placed of record, without the knowledge or consent and against the express wishes and request of the complainants, all of which was only recently discovered by them. These averments show cause for the relief sought and sufficiently acquit the complainants of lack of diligence.

To have been efficacious as a conveyance of title, delivery of the deed was an indispensable requisite. Fitzpatrick v. Brigman, 130 Ala. 450, 455, 30 So. 500; Culver v. Carroll, 175 Ala. 469, 57 So. 767, Ann.Cas.1914D, 103.

The 'mere deposit of a writing complete in other respects as a deed with a person other than the one named as grantee or his agent, when unaccompanied with any intention of passing title, is not a delivery such as is necessary to constitute a deed.' Tarwater v. Going, 140 Ala. 273, 275, 37 So. 330.

The deed was subject to be,

and was, recalled by the grantors before delivery to the grantee and was therefore ineffectual to divest or pass title, Culver v. Carroll, supra, 175 Ala. 469 at page 472, 57 So. 767, Ann.Cas.1914D. 103: Prutsman v. Baker, 30 Wis. 644, 11 Am.Rep. 592; Davis v. Cross, 14 Lea 637, 82 Tenn. 637, 52 Am.Rep. 177, and its delivery and recordation under the described circumstances in no way affected the complainants' instant rights unless the respondent's claim of title was brought to their knowledge for such a length of time as to place the responsibility on the complainants of contrary action to avoid the effect of laches.

There is no arbitrary rule as to when equity will refuse to intervene because of laches and each case turns much on its own facts. Oxford v. Estes, 229 Ala. 606, 611, 158 So. 534; Bromberg v. First National Bank, 235 Ala. 226, 178 So. 48.

There may be qualifying circumstances which will...