Rodgers v. Thornton, 6 Div. 956

• Decision Date: 11 May 1950
• Docket Number: 6 Div. 956
• Citation: 46 So.2d 809,254 Ala. 66
• Parties: RODGERS v. THORNTON.
• Court: Alabama Supreme Court

Page 809

46 So.2d 809

254 Ala. 66

RODGERS v. THORNTON.

6 Div. 956.

Supreme Court of Alabama.

May 11, 1950.

Rehearing Denied June 22, 1950.

H. L. Anderton, of Birmingham, for appellant.

Jas. H. Bradford and Jackson, Rives & Pettus, of Birmingham, for appellee.

SIMPSON, Justice.

This case was here before on appeal from a decree on demurrer, where it was held that the bill was good as one to establish a resulting trust. Reference may be had to that opinion for the pleadings in the case. Thornton v. Rodgers, 251 Ala. 553, 38 So.2d 479.

The present appeal presents for decision the right of appellant to relief on the facts.

Mrs. Rodgers, the appellant, formerly wife of defendant, J. L. Thornton, in March, 1948, filed the bill against him to establish a resulting trust in various of his real estate holdings on the theory that in 1925 he had received a certain sum of money of her separate estate and had invested it in a tract of real estate, along with his own money, with the understanding that she would have an interest in it and that throughout the years intervening she had been led to believe that she still was to have an interest in his successive holdings after the sale many years ago of that particular piece of property. The appellant's claim to the sum of money as her separate estate is based on the payment of $3,000 by the Birmingham Gas Company in 1925 as damages by reason of a gas explosion in appellee's home, where the couple resided, the contention being that a part of the sum which was paid in settlement of the damages was for personal injuries to herself; that though the husband, appellee, received and utilized the entire sum of money himself, it was to purchase a piece of property upon which another home was later constructed, with his agreement with her that she would have an interest in the property and that her interest would be protected; that though this piece of property was disposed of, as well as many others, her husband left her under the impression that her interests were always to be protected.

In addition to a denial of the entire claim of appellant, the defendant defended on the ground of (1) laches and (2) an agreement (reported with the first case) which was executed between the parties in 1943 in contemplation of a divorce, then obtained by him, whereby it is contended that appellant had released all interest which she might have ever claimed.

The applicable principles of law were fully discussed on the former appeal. The principles are well understood and need no further elaboration. The question which we are to decide is one of fact. The trial court on a hearing of the witnesses in open court concluded against Mrs. Rodgers and we are constrained to sustain that holding. We are left unconvinced, after a studious consideration of the record, that she has sustained the onus probandi.

For emphasis, we refer to the favorable presumption of correctness attending the trial court's conclusion on issues of fact in such cases. On a hearing ore tenus, such conclusions will not be disturbed unless palpably erroneous and are against the great weight of the evidence; and it is not necessarily what view the reviewing court might have of the evidence, but if under any reasonable aspect the decree below is fairly supported by credible evidence, it is our duty to affirm. Lane v. Bruner, 236 Ala. 269, 182 So. 5; Ray v. Ray, 245 Ala. 591, 18 So.2d 273; Penny v. Penny, 247 Ala. 434, 24...