Rainer v. Moseley

• Decision Date: 01 March 1951
• Docket Number: 4 Div. 616
• Citation: 255 Ala. 253,51 So.2d 244
• Parties: RAINER v. MOSELEY.
• Court: Alabama Supreme Court

Page 244

51 So.2d 244

255 Ala. 253

RAINER v. MOSELEY.

4 Div. 616.

Supreme Court of Alabama.

March 1, 1951.

Cope & Cope, of Union Springs, for appellant.

Moseley & McIlwain, of Union Springs, for appellee.

BROWN, Justice.

The appeal in this case is by S. P. Rainer, Jr., one of the defendants, from an interlocutory decree overruling his demurrer to the bill as last amended. The bill is a creditor's bill filed by the appellee Rochelle R. Moseley, on April 5, 1948, against S. P. Rainer, Jr. and J. W. Rainer, as executors of the estate of S. P. Rainer, Sr., deceased, and against them and the other heirs at law of said S. P. Rainer, Sr., individually, for discovery and relief.

The bill alleges that the complainant on July 28, 1931, recovered a judgment against the said S. P. Rainer in the Circuit Court of Bullock County, 'which judgment was duly recorded in the Probate Office of Bullock County, Alabama, on August 22, 1931, that execution was duly issued on said judgment within the time required by law, and return was made by the Sheriff of Bullock County, Alabama, to the court of 'no property found.' That on January 12, 1946, the said judgment was duly revived by a scire facias proceeding in the Circuit Court of Bullock County, Alabama, a copy of the order or decree reviving said judgment being attached hereto, as Complainant's Exhibit B and by reference made a part hereof.

'That the said S. P. Rainer, Sr., the judgment debtor, died on to-wit: August 13, 1933, a resident of Bullock County, Alabama, and two of his sons, namely: S. P. Rainer, Jr., and J. W. Rainer were duly appointed and qualified as Executors of his estate, * * *; that notice of Complainant's said judgment and claim against the estate of S. P. Rainer, Sr., deceased, was duly given and filed within the time required by law, and Complainant avers that said judgment and claim with interest and costs has not been paid and there has never been a final settlement of said estate, and said Executors have never been discharged.

'Complainant avers that at the time of said execution and the return of the Sheriff of 'No property found', there were 160 acres of land, described as follows, to-wit: (describing said land) which belonged to said S. P. Rainer, Sr., and was not encumbered, and which was subject to the lien of said judgment; that the said above described land was not sold or disposed of by the said S. P. Rainer, Sr., during his lifetime, and upon his death became the property of his heirs at law, subject to the lien of said judgment and claim of complainant.

'That on the 4th day of March, 1916, S. P. Rainer, Sr., executed a mortgage to Connecticut General Life Insurance Company, and default was made in the payment of the indebtedness secured thereby, and it was duly and legally foreclosed on October 12, 1931, and the said Connecticut General Life Insurance Company took possession of the said 160 acres described in Paragraph Four hereof, as a part of the land described in said mortgage executed by S. P. Rainer, Sr., and purchased by said Connecticut General Life Insurance Company at the foreclosure sale, when, in fact, said 160 acres of land was not included in said mortgage and not described therein; and was not sold at said foreclosure sale, and was not conveyed to the said Connecticut General Life Insurance Company by foreclosure deed, and was held by General Life Insurance Company by mistake of fact. Complainant is informed and believes and upon such information and belief alleges that when the Connecticut General Life Insurance Company discovered that it was wrongfully holding the possession of the one hundred sixty acres of land described in the fourth paragraph of the original Bill of Complaint, the property of S. P. Rainer, Sr., deceased, it disclaimed any interest therein or right thereto, and at the request of S. P. Rainer, Jr., as executor of the estate of said S. P. Rainer, Sr., executed a quitclaim deed to him in his own individual name, a copy of which is attached to the original Bill of Complaint as Exhibit D, and by reference made a part thereof; and Complainant avers that since the execution of said deed the said S. P. Rainer, Jr., has claimed the said one hundred sixty acres of land individually; he has assessed it in his own name as his individual property; he has collected the rents from said lands and converted same to his individual use; and, has sold the saw mill timber and pulp wood timber, the receipts from said sales being converted to his own individual use, and complainant avers that said S. P. Rainer, Jr., in furtherance of his own scheme to cover up, defraud and prevent the said one hundred sixty acres of land from being applied toward the payment and satisfaction of the lien of said judgment of said Complainant, has attempted on more than one occasion, and to more than one person, to sell the said land and convey title thereto in his own name. And complainant avers that the said quitclaim deed executed by the Connecticut General Life Insurance Company to the said S. P. Rainer, Jr., was without consideration and that the said ...