Ray v. Watkins

Decision Date15 January 1920
Docket Number6 Div. 920
Citation85 So. 25,203 Ala. 683
PartiesRAY v. WATKINS et al.
CourtAlabama Supreme Court

Appeal from Circuit Court, Fayette County; Henry B. Foster, Judge.

Bill by George D. Ray against G.M. Watkins, as executor of the estate of Lizzie Ray, deceased, and others, for specific performance of a contract to convey land. Decree for respondents, and complainant appeals. Affirmed.

In view of Gen. Acts 1915, p. 705, and page 722, amending Act April 5, 1911 (Laws 1911, p. 198), to amend Code 1907, § 2846 providing that presumptions in favor of correctness of judgment appealed from shall not be indulged, Code 1907, § 5955, subd. 1, providing that no weight shall be given the chancellor's decision upon the facts, but the Supreme Court shall weigh the evidence, must be construed as applying where the judge did not see or hear the witnesses; but where he did, unless plainly erroneous, the findings will be treated like a jury's verdict.

The bill alleges that Lizzie Ray executed a bond for title to George D. Ray for certain land, and that the purchase money thereof was paid at a later date and Lizzie Ray executed a deed to complainant; but that in the execution of the deed which was intended to be a warranted deed, the parties thereto, through ignorance or inadvertence, selected as the justice of the peace one A.D. Ray, to take the acknowledgment to the deed, who was the father of the complainant and grantee in said deed. It is further alleged that Lizzie Ray afterward married G.M. Watkins, and, having died, left a will leaving all of her property to Watkins and naming him as executor. The judge trying the cause found the following facts as a basis for his decree dismissing the bill:

"(1) The complainant's uncle, Alex Ray, at the time he devised the land to Lizzie Ray, then his wife, expressed a request or wish that she should will the land at her death to the complainant, and apparently up to the time of some difference, as shown by the testimony of L.B. Thompson between Lizzie Ray and complainant, when the latter left the place, both Lizzie Ray and complainant expected the land to go to complainant at Lizzie's death. The undisputed testimony shows that in pursuance of this purpose Lizzie Ray had Mr. J.A. Brown write her will, leaving this land and all her personal property to complainant. But after her marriage to respondent Watkins, Lizzie made another will devising all her real and personal property to her husband.
"(2) Lizzie Ray up to the time of her death was in possession of the land, claiming absolute title to it, and during her life neither she nor complainant ever made mention of his having executed a deed to complainant, except that complainant claims to have showed it to his brother, Mack Ray. On the contrary, Lizzie inferentially denied ever having made a deed to complainant, when she told L.B. Thompson, in the fall of 1912, after the date of the instruments relied on by complainant, that she was rid of complainant and was glad to get rid of him and it seemed to her that complainant got mad and wanted her to make him a deed for staying there.
"(3) If the bond for title and deed were in fact executed, they were withheld from record, and their existence was kept secret from all except complainant, his father, his brother, and his stepbrother. I have reached this conclusion notwithstanding the testimony of George Gurley, which does not impress me, because it hardly is probable that after a lapse of five or six years this witness would be able to recall the date of a casual call by the house of Lizzie Ray and, further, because the statement alleged by him to have been made by A.D. Ray, or complainant, is not consistent with their seemingly studied care to keep the existence of that document secret until after the death of the principal obligor, if it in fact was executed. It hardly is probable in view of their continued reticence to all their friends that they would have proclaimed the fact to a comparative stranger in that neighborhood.
"(4) With the exception of complainant's alleged disclosure to Mack Ray, his brother, the day of the alleged execution of the deed, complainant did not disclose his claim to having a deed until about three weeks after Mrs. Watkins' death, although the day after her burial he saw defendant Watkins and asked him if he had found among Mrs. Watkins' papers a will or deed to him, and was informed by Watkins that he (Watkins) was claiming the land under Mrs. Watkins' will.
"In these circumstances it requires clear and convincing proof of the execution of the deed and bond for title to satisfy the mind that they were in fact executed, and especially should the proof be free of marks of suspicion. All the witnesses were examined orally before the court, and I thus had opportunity to observe the bearing and demeanor of the witnesses, and in a general way know the personal character of most of the witnesses.
"The alleged bond for title makes no mention of a life estate to be reserved to Lizzie Ray, but calls for the execution of a warranty deed, and, in legal effect, a deed granting the present right of enjoyment, and the consideration expressed in the bond for title is $300, the evidence showing that the property was worth over $2,000. Under this bond for title the complainant had the right to compel the execution of a warranty deed with present right of enjoyment for the sum of $300, and could then eject Mrs. Lizzie Ray (Watkins) from this land, which was substantially
all the property she owned. But when the deed is written there is inserted a condition that it is to take effect at the death of Lizzie Ray, and not before. Under the bond for title, if genuine, complainant could have compelled the execution of a deed conveying a present right of possession. If a deed were fabricated for the purpose of making a false claim, the insertion of such a clause might be thought more readily to explain the failure to record the deed and the keeping secret of the claim to the land through a number of years, and until after the death of the alleged grantor.
"The alleged circumstances of the execution of the bond for title are, I am convinced, suspicious. According to the testimony of complainant and his witnesses there just happened to be present as witnesses complainant's father, his brother, and his stepbrother. The complainant testified that the trade between him and Lizzie Ray called for a deed to be executed that morning, and the only reason it was not executed was because his father, being a justice of the peace in Tuscaloosa county, could not take an acknowledgment in Fayette county. Apparently for that reason alone complainant asserts that without any change of the terms of the trade, except as the bond for title changed them, Lizzie Ray gave up her right to present payment of the purchase money and complainant his right to present execution of the deed, and postponed the completion of the transaction for nearly two months. And this occurred although the transaction was in the morning and within a mile of a competent justice of the peace or notary public, to obtain whose services no effort whatever was made. If that justice or notary had been called in, complainant, if he in fact made the trade with Lizzie Ray, would have had a deed executed under circumstances which would have dispelled all suspicion as to the bona fides of the transaction.
"Likewise is the testimony with reference to the execution of the deed. Complainant and Lizzie Ray lived within a mile of a competent justice or notary public of Fayette county. But, instead of having that justice write the deed and take the acknowledgment, complainant says they took a long journey to his father's home in Tuscaloosa county, and, as in the case of the bond for title, the only persons who witnessed the execution of the deed were members of complainant's immediate family. He attempts to explain this by saying that Lizzie Ray would not have anybody but his father make the deed. But the testimony shows that she had a friend, Mr. J.A. Brown, in Berry, to whom she had gone to write the will in which she left her property to complainant. It is a fact of general knowledge that
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