Randolph v. Randolph

• Decision Date: 01 June 1944
• Docket Number: 5 Div. 387.
• Citation: 245 Ala. 689,18 So.2d 555
• Parties: RANDOLPH v. RANDOLPH.
• Court: Alabama Supreme Court

18 So.2d 555

245 Ala. 689

RANDOLPH v. RANDOLPH.

5 Div. 387.

Supreme Court of Alabama

June 1, 1944

Rehearing Denied June 29, 1944.

R. T. Milner and Holley, Milner & Holley, all of Wetumpka, for appellant.

Huddleston & Jones, of Wetumpka, and Ball & Ball, of Montgomery for appellee.

STAKELY, Justice.

This is an appeal from a final decree of the equity court cancelling a deed executed by Frank Randolph (appellee) to Laura Randolph (appellant). The deed embraced about 1144 acres of farm lands in Elmore County.

This litigation originated in the form of two ejectment suits brought on the law side of the court by Laura Randolph, one suit being against Frank Randolph alone, the other suit being against Frank Randolph and his tenants, S. P. Storrs and J Loyd Abbot. Frank Randolph filed a motion to transfer the cases to the equity side of the court. The suits were transferred by order of the court to the equity side of the court and there consolidated, the two tenants being stricken as parties to the cause. We conclude that the transfer and consolidation were by agreement from our examination of the record. The record shows that there was no contest of the motion to transfer; that the first case was transferred by order of the court; that the second case was transferred and consolidated with the first case by agreement of the parties and in the bill of complaint then filed in the equity court by Frank Randolph, the consent of Laura Randolph to the transfer and consolidation was alleged. The truth of this statement was not questioned. The first ejectment suit involved all the lands embraced in the deed, except that part leased to S. P. Storrs, and the second ejectment suit embraced that part of the lands embraced in the deed which had been leased to S. P. Storrs.

The allegations of the bill of complaint filed by Frank Randolph in the equity court show in substance the following Complainant is the owner and in possession of certain lands lying in Elmore County, Alabama (the lands embraced in the deed heretofore referred to). Complainant married the respondent, Laura Randolph, about 1916. She had been previously married and was a widow with two children, a boy of about five years of age and a girl of about fifteen years of age. Thereupon complainant and his wife, with her children, took up their residence on complainant's lands-the lands referred to above-where he supported her and her children and where they lived for some years. Later, at respondent's request, complainant was persuaded to move with her and her children to lands owned by her in Elmore County. During the year 1934, complainant and respondent were living together as husband and wife on her property. About that time respondent began to bring up in frequent discussion the fact that complainant had no last will and testament and what would become of complainant's property at his death. There was some discussion about complainant making a will but respondent urged the disadvantages of a will which would necessitate the expense of administering complainant's estate, and strongly insisted and urged that it would save considerable expense of administration if complainant would sign a deed to his real estate, to be used only at his death. Respondent employed her attorney to prepare such a deed, and complainant signed the same, with the express understanding and agreement that it would not be used or delivered, but would be kept subject to complainant's control, and would not be recorded or become of any effect during the complainant's lifetime, and complainant was free at any time to destroy the deed and make such other disposition of the real estate as he might see fit. It was further agreed that the deed should not in any way interfere with or limit complainant's possession or ownership of the property. After the deed was signed, it was never delivered, and it was to be kept in the home for use only in event of complainant's death.

The deed was signed January 4, 1935, and soon thereafter complainant decided to destroy the deed, and being unable to find it in the home, asked his wife where it was, but she gave him an evasive answer, and although complainant tried on several occasions to find the deed and asked his wife where it was, he was not able to find it. On November 3, 1935, respondent recorded the deed in the office of the Judge of Probate of Elmore County, Alabama, in violation of the agreement that the deed would not be recorded or used or be effective until complainant's death, but did not disclose either her intention of recording the deed or the fact that it had been recorded, and the fact of the recording was not discovered by complainant until later.

After complainant signed the deed, he continued to exercise exclusive dominion and control over the real estate and continued to pay the annual principal and interest payments in varying amounts from $700 to $900 each year on a mortgage on the real estate held by the Federal Land Bank of New Orleans, which was originally for $15,000, but which was reduced in amount by principal payments, and which is still in effect and unpaid. Complainant continued to pay the taxes on the real estate and continued to rent out part of the land to tenants and to farm the balance of the land himself, and at no time prior to the filing of the ejectment suits did the respondent exercise any dominion, possession or control over the real estate or claim any of the rents or profits thereof, nor has she ever paid anything on the mortgage, any of the taxes, or any of the expenses in connection with the upkeep of the property, all of which complainant has borne.

Soon after the execution of said deed by complainant, respondent's wifely affectionate attitude toward him began to undergo a complete change and she began to show less and less interest in him or attention to him, and a few weeks after she had prevailed upon complainant to sign the deed, she moved out of his room and into a separate room in the house, and finally in the early part of April, 1941, she ordered complainant out of her home, told him never to return thereto. Complainant thereupon moved back to the property embraced in the deed, where he now resides and where he has resided since that time. Since that time complainant and respondent have not lived together, no divorce proceedings have been instituted by either party, and the marriage relationship still exists. Soon after respondent drove complainant out of her home, she instituted against him the ejectment suits.

Although the deed recites a consideration of $5, neither that amount nor any other amount was received by complainant for the execution of the deed. The deed was never delivered and was never intended as a conveyance of title to complainant's wife, but was executed under the circumstances and for the consideration hereinabove set forth. The income from the land embraced in the deed is and has been complainant's main source of support. Respondent owns in her own right real estate, the value of the equity of which is equal to or greater than the value of the equity of complainant's property.

The bill of complaint contains the following paragraph:

"12. Complainant avers that his signature to the deed referred to in paragraph 5 of this bill was obtained by fraud and as a part of a fraudulent scheme on the part of the respondent to deprive him of the property described in said deed and that he signed said deed at a time when he and his said wife were living together in the close and confidential relationship of husband and wife and in such relationship he had a right to rely upon his wife not to betray his trust in her or to use said deed contrary to the purpose for which it was signed, namely, to serve in the place of a will, but that respondent's use of said deed by recording same and using said deed as a present conveyance instead of in the place of a will was a breach of trust on her part and a violation of the confidence which he had placed in her as a wife and was a fraudulent use of said deed and was in violation of the agreement and understanding between them as to the purpose of said deed and the use to which it was to be put, namely, that it was not to be used, or to become effective or to be recorded unless complainant died with said deed unrevoked and still in existence. Complainant avers that the deed was fraudulently obtained by respondent and was fraudulently used by her in violation of his trust in her. Complainant further avers that said deed as recorded and as used in violation of the confidential agreement under which it was executed constitutes a cloud on complainant's title to said real estate and should in equity and good conscience be set aside, cancelled and held for naught."

The prayer of the bill was for a decree setting aside and cancelling as a cloud on complainant's title the deed referred to.

The answer of the respondent in substance admitted that the complainant was in possession of the real estate, but denied that he was the owner thereof. She denied any condition or agreement relating to the execution or delivery of the deed as alleged by the complainant, but on the other hand alleged in effect that the lands were conveyed to her because complainant was fearful that he would not be able to keep up the payments thereon; that he had borrowed money from her and had been unable to repay the same; that the deed was prepared at the instance and request of complainant and signed by him after he had carefully checked the description contained in the deed; that she had not recorded the deed immediately because she had no funds with which to pay the recording fees; that the complainant, over her protest and objection, unlawfully entered upon and took possession of the...