Powe v. Payne

• Decision Date: 26 October 1922
• Docket Number: 7 Div. 236.
• Citation: 94 So. 587,208 Ala. 527
• Parties: POWE ET AL. v. PAYNE ET AL.
• Court: Alabama Supreme Court

94 So. 587

208 Ala. 527

POWE ET AL. v. PAYNE ET AL.

7 Div. 236.

Supreme Court of Alabama

October 26, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.

Suit by Marguerite Powe Payne and others against Frank H. Powe and others. From a decree overruling demurrers respondents appeal. Affirmed.

Knox Acker, Dixon & Sims, of Talladega, for appellants.

Lapsley & Carr, of Anniston, for appellees.

SAYRE J.

In January, 1920, Julius A. Powe, seised and possessed of the land in controversy, executed and delivered to his four children a voluntary deed to the same reserving unto himself for life "the rents." This is conceived in the brief for appellant to amount to the reservation of a life estate in the land, and properly so, we think. Reed v Reed, 9 Mass. 372; Fox v. Phelps, 17 Wend, (N Y.) 393; Williams v. Owen, 116 Ind. 70, 18 N.E. 389; 3 Washburn, Real Property (5th Ed.) 405; 18 C.J. 306. Previously, in 1914, 1915, and 1917, he had executed and delivered to his son, defendant (appellant), Frank H. Powe one of the grantees named in the later deed, three several conveyances of the same tract of land. The bill here is filed by the three daughters, being three of the grantees named in the later deed, against Frank H. and Julius A. and the Federal Land Bank to whom Frank H. had given a mortgage to secure a loan to him. The two-fold purpose of the bill is to vacate and cancel the conveyances to Frank H. as having been induced by fraud and undue influence, and the mortgage as having been accepted with knowledge or notice of the infirmity of the mortgagor's title, and to have the property sold for division in lieu of partition. The separate demurrers of Frank H. Powe and the Federal Land Bank were overruled; after which said parties took this appeal.

Complainants are entitled to file this bill for the protection of their estate in remainder notwithstanding they are not in actual possession. Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528; Lansden v. Bone, 90 Ala. 446, 8 So. 65; Dallas Compress Co. v. Smith, 190 Ala. 434, 67 So. 289.

The argument that the deed to complainants savored of maintenance, and hence that they should not be allowed to proceed in this cause, is answered by the decision in Gandy v. Fortner, 119 Ala. 303, 24 So. 425.

If the bill be taken as intending to charge fraud, that is, fraud other than undue influence, it would be seriously defective in failing to set forth clearly the facts constituting fraud but we read the bill as charging the procurement of the conveyances to defendant Frank H. Powe by means only of that species of fraud known as undue influence. We consider the averments of the amended bill-the amendment withdrew the averment of the grantor's mental incapacity-as equivalent to the averment...