Rainey v. McQueen

• Decision Date: 11 May 1899
• Citation: 25 So. 920,121 Ala. 191
• Parties: RAINEY ET AL. v. MCQUEEN.
• Court: Alabama Supreme Court

25 So. 920

121 Ala. 191

RAINEY ET AL. v. MCQUEEN.

Supreme Court of Alabama

May 11, 1899

Appeal from chancery court, Autauga county, J. R. Dowdell Chancellor.

Suit by Lola McQueen against Maud Rainey and others. From a decree overruling defendants' demurrer and granting the relief prayed in complainant's bill, defendants appeal. Affirmed.

On September 25, 1895, Lola McQueen, the appellee, filed her bill, in which she alleged that on the 7th October, 1876, her father, J. D. McQueen, died, owning and in possession of certain land; that on the 22d February, 1876, he had executed and delivered to Mills Rogers and Jacob Faber a mortgage on said land to secure them against loss for signing certain notes, due one year thereafter, as his sureties, and to secure said Faber for advances which he might make during 1876 to enable him to make a crop; that upon his death the mortgagees took possession of the land, and have since remained in possession, through themselves or their representatives, as mortgagees, receiving the rents and profits; that the assets of the estate and the rents and profits so received by the mortgagees have fully paid the mortgage debt, and that defendants, claiming under such mortgagees, have no title to the land; that one of the mortgagees (Faber) and one Alexander were appointed administrators of her father's estate on 7th December 1876; that, after the mortgagees had so gone into possession they and the administrators entered into a fraudulent scheme to deprive complainant and her brothers of the property which scheme was, in substance, that the administrators should file a petition in the probate court to sell the equity of redemption in the lands for the payment of debts which had no real existence, as all the parties concerned knew, and thus to enable Rogers to buy the land for a nominal price; that this plan was fully carried out; that early in 1877 the administrators filed a petition for the purpose of selling the said lands for the payment of the debts of the McQueen estates, the mortgagees consenting that the whole title might be sold under the order of sale prayed for; that on the 14th day of February the court entered an order of sale, in which it declared the complainant and her administrators did not proceed under this order, but on the 22d September, 1877, in pursuance of said fraudulent scheme filed another petition to sell the equity of redemption in certain lands, which were intended to be those included in the mortgage, but which were misdescribed; that an order of sale was made on November 3, 1877, but there was no guardian ad litem appointed to act for the minors, and no depositions were taken, as in chancery cases, to prove the existence of debts and insufficiency of personalty; that Mills Rogers was reported to have purchased said equity of redemption for $580, and to have fully paid the purchase money, and a deed was ordered to be made to him; that the lands were worth $4,000; that the administrators and mortgagees used the funds of the estate to pay off the debts described in the mortgage; that the rents collected by Rogers during the year 1877 were enough to pay the $580 purchase money at the probate sale,-so, as a result of the scheme, Rogers got the land for nothing. Complainant further alleges that, on account of the irregularities, the probate proceedings were void; that there had been no regular and valid foreclosure of the mortgage, and, even if there had been, the probate proceedings were an admission of its invalidity. It was further averred in the bill that the complainant attained her majority during the year 1895, and that the facts averred in the bill were disclosed to her only a short time before the filing of the bill, and, further, that the complainant and her two brothers were the only children and heirs of the said J. D. McQueen. It was further averred that Mills Rogers died intestate on July 18, 1888, and left surviving him, as his only heirs at law, Mackey Davis and Maud Rainey, and that W. D. Whetstone was duly appointed administrator of the estate of Mills Rogers, deceased, and went into possession of the lands involved in controversy, and said administrator and the heirs of Mills Rogers have held them ever since the latter's death. It was further averred that Jacob Faber died May 13, 1895, and left surviving him three children, and that W. H. Hunt was appointed administrator. The two brothers of the complainant, W. D. Whetstone (as administrator of the estate of Mills Rogers, deceased), Mackey Davis, Maud Rainey, and the children of Jacob Faber, and his administrator, were made parties defendant to the bill. The prayer of the bill was that the complainant be decreed to be entitled to redeem the said lands, and entitled to the possession thereof upon the payment of the sum ascertained to be due under said mortgage, or under the said sale of the alleged equity of redemption, or otherwise, and that an accounting be stated between the said mortgagees and the complainant, etc.

The defendants Maud Rainey and Mackey Davis, the children and heirs of Mills Rogers, filed a joint and separate demurrer to the bill, alleging the following grounds: (1) There is no equity in the bill. (2) It appears by one of the alternative averments of said bill that the mortgage from which it is sought to redeem was foreclosed in the year 1887, and that complainant is barred by lapse of time of any right to redeem. (3) The said bill of complaint is defective in this: It alleges that there never was any due foreclosure of said mortgage under the power therein contained, but does not set up the facts on which it is claimed that the foreclosure was not legal and proper. (4) The bill of complaint is defective in this: It avers that the alleged equity of redemption which the administrators of her father's estate petitioned to sell, on the allegations of the petition, had no existence whatever, but does not show or set out what such allegations were, but simply the conclusion of the pleader therefrom. And defendants jointly and separately moved to dismiss the bill for want of equity. There was no action on the motion, but each ground of demurrer was separately overruled. The defendant Maud Rainey, one of the two children of Mills Rogers, to whom his entire interest in the land had passed prior to the filing of the bill, on March 12, 1896, filed an answer, in which she denied that her father had ever been in possession of the land as mortgagee, and set up that he did not go into possession of it until after a foreclosure of the mortgage, and that when he went into possession he did so claiming to be the owner, and ever since, for nearly 20 years, he or his representatives had remained in possession, claiming it as their own, and adversely to complainant. She denies in toto that there was any such scheme or agreement between the administrators of McQueen and the mortgagees as that described in the bill. She also denies the conclusion of law stated in the bill, that the probate proceedings amounted to a consent that the foreclosure proceedings were invalid. She then sets up in her answer that after the law day of the mortgage, default having occurred, there was a due and regular foreclosure sale under and in accordance with the power therein, at which one T. W. Sadler purchased for his sister, Mrs. Cooke; that subsequently Mrs. Cooke became dissatisfied with her purchase, and transferred the same to said Rogers for the amount of the bid; that she believes deeds were executed by the mortgagees to Mrs. Cooke, and by Mrs. Cooke to Rogers, but that she has been unable to find the same, and that, even if none were executed, her father got a good title, and went into possession claiming the land as his own, and so remained until his death, in 1888; that subsequently, in 1892, her sister conveyed to her a half interest in the same, since which time she has been in possession, claiming to own the entire fee. The defendant Mackey Davis adopted the answer of Maud Rainey as that of hers, and the other defendants also answered the bill.

The evidence adduced showed that J. D. McQueen executed a mortgage as alleged in the bill to Mills Rogers and Jacob Faber on February 22, 1876, upon certain lands, which were described as follows: "N. 1/2 of section 32, township 17, range 16." This mortgage was made an exhibit to the bill, and was proven as averred in the bill. It was further shown by the evidence that J. D. McQueen died October 7 1877, and that regular letters of administration were granted to Jacob Faber, one of the mortgagees, and one J. L. Alexander, on December 17, 1876; that in January, 1877, the administrators filed a petition in the probate court asking for an order of sale of the lands of the estate of J. D. McQueen, deceased, for the payment of debts; that upon the hearing of this petition it was granted, except as to 160 acres of land, which were reserved as a homestead for the complainant and her two brothers, who were the only children and heirs at law of said McQueen; that this order was never executed by the administrators, but that on September 22, 1877, the administrators filed a petition in the probate court in which it was averred that J. D. McQueen, at the time of his death, "owned an equity of redemption, and...