Plann v. Morris

• Decision Date: 07 March 1940
• Docket Number: 6 Div. 592.
• Citation: 194 So. 518,239 Ala. 176
• Parties: PLANN v. MORRIS.
• Court: Alabama Supreme Court

194 So. 518

239 Ala. 176

PLANN v. MORRIS.

6 Div. 592.

Supreme Court of Alabama

March 7, 1940

Appeal from Circuit Court, Walker County; S. N. Morris, Judge.

Bill by S. N. Morris against W. W. Worthington (alias William Wethington) and Hazel Wethington Plann, to establish reconveyance to complainant-mortgagor of real property covered by mortgage and to annul certain conveyances as in fraud of creditors. From a decree for complainant, respondent Plann appeals.

Affirmed in part and in part reversed and rendered.

Pennington & Tweedy, of Jasper, for appellant.

Curtis & Maddox, of Jasper, for appellee.

GARDNER Justice.

Defendant W. W. Worthington, in November 1929, borrowed from complainant, Morris, $300, executing a note therefor and a mortgage on a house and lot in Oakman, Alabama, where both parties reside. It developed, however, that Worthington had in October, 1922, conveyed this property together with other parcels of real estate, to his daughter Hazel Worthington Plann, then eighteen years of age and married. By this bill, Morris seeks to establish a reconveyance by the daughter to the father of this particular property embraced in his mortgage, and also seeks to have the conveyances executed in 1922 (three in number) by the father to the daughter set aside and annulled as in fraud of creditors.

By the decree complainant Morris was granted relief in both aspects of his bill.

The matter of reconveyance of the property by the daughter to the father was sought to be established by parol proof. No deed is exhibited. Upon questions of this character, the burden rested on complainant not only to account for the absence of the deed, but he must also clearly prove its existence as a genuine instrument. If successful in this preliminary proof then he will be permitted to show by parol the contents of the deed. "But the evidence of such contents must be pointed and clear: no vague or uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself." These general principles and the reasoning upon which they are rested are well stated in Shorter v. Shepphard, 33 Ala. 648, followed in Sorrels v. Cole, 234 Ala. 70, 173 So. 607; Smith v. Owenton Land Co., 219 Ala. 422, 122 So. 663; Union Baptist Church v. Roper, 181 Ala. 297, 61 So 288. See, also, 18 Corpus Juris 437.

Here the daughter emphatically denies the execution of any deed to the father, nor does the evidence disclose any particular occasion for a reconveyance as to this particular property, exclusive of the other the father had deeded to her in 1922.

For proof, reliance is had upon the statement of the father to Morris that he had such a deed, and its exhibition to Morris,--the daughter being absent, and so far as the record shows entirely ignorant of any such conversation or exhibition. Morris states he looked at the deed, and it was not recorded. He does not say he read its contents, and makes no effort to give them. He cannot recall the date, but says it was made before Esquire Crownover, and witnessed by his daughter Irene, both of whom were dead. He does not state whether he looked at the signatures, and, if so, whether or not the daughter's husband also signed. All of this is sought to be supplied by the testimony of Crownover's widow, who remembers a time when the daughter and her husband were at the house for Esquire Crownover to fix up some papers, and they signed the papers "he fixed up," and Irene, her daughter, witnessed it. Esquire Crownover died in April 1932, and the widow at one time says this occasion was a few years before his death. But she is uncertain about the whole matter, and especially the time, which on cross-examination she seems willing to place as far back as 1922.

Whether or not complainant has clearly shown this was a genuine deed, is to say the least a doubtful proposition. Such a conclusion, we are inclined to think, rests too much upon conjecture.

But, even conceding for the moment, the sufficiency of this preliminary proof, there is no pretense of proof as to the contents. And, as said in Shorter v. Shepphard, supra, "The evidence of such contents must be pointed and clear." The widow of "Squire" Crownover knew nothing of the contents and made no effort to testify thereto; and Morris did not say that he in fact read the deed or knew its contents. Nothing as to the consideration, the date, whether or not the husband's name was signed to the instrument, and no indication whatever as to the title, appears. Did it purport to convey a fee simple title, or only a life estate, or were there reservations of any character? All of this is left to conjecture.

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