Rudulph v. Burgin

• Decision Date: 02 May 1929
• Docket Number: 6 Div. 239.
• Citation: 122 So. 432,219 Ala. 461
• Parties: RUDULPH v. BURGIN ET AL.
• Court: Alabama Supreme Court

122 So. 432

219 Ala. 461

RUDULPH v. BURGIN ET AL.

6 Div. 239.

Supreme Court of Alabama

May 2, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill to establish a resulting trust in real estate, by Pauline E Burgin, individually and as administratrix of the estate of James B. Burgin, deceased, and Sarah Elizabeth Burgin, Andrew W. Burgin, and James B. Burgin, Jr., minors, suing by their next friend, Pauline E. Burgin, against Z. T. Rudulph. From a decree overruling a demurrer to the amended bill, defendant appeals. Affirmed.

Rudulph & Smith, of Birmingham, for appellant.

Murphy & Hanna and Marvin Woodall, all of Birmingham, for appellees.

SAYRE J.

In its original form appellee's bill sought relief on the averment-to state the substance of the bill very briefly-that her intestate, who was her husband and the father of her infant children, who are named as joint party complainants while insane and mentally incompetent attempted to convey described parcels of land to appellant, but that his conveyance was wholly void and of no effect. In her amended bill appellee-so to speak of Pauline E. Burgin-complained "individually and as administratrix" and the minor children are joined as suing by their next friend, the complainant above named. The substance of the bill is then stated as follows: It is averred that intestate for months preceding his death was involved in great financial difficulties; that he and appellee executed to Annie M Perdue a mortgage of the described parcels of land; that the mortgage was foreclosed; that M. E. Johnson became the purchaser; that intestate and appellee Pauline E. Burgin applied to appellant Rudulph for help against the time, then near at hand, when their statutory right of redemption would expire by limitation; that appellant thereupon agreed that, if Burgin and appellee would execute and deliver to him (Rudulph) a transfer and assignment of their right of redemption, he would furnish the money to redeem upon the understanding and agreement that, upon repayment, he would reconvey to Burgin or appellee as he might be directed; that the money was furnished and redemption effected by appellant, to whom intestate and appellee executed and delivered a "transfer and assignment of such statutory right of redemption"; that appellant took from M. E. Johnson a conveyance of the property, since when he has been in possession; that since the death of intestate appellee conferred with Rudulph, who "did on various occasions in these conferences advise the sale of said lands and state to the said Pauline E. Burgin that the land should be sold, his money repaid him, and the balance made available for her and her children"; that, shortly after the assignment of the right of redemption was delivered to appellant, he did deliver to appellee an agreement in the form of a letter in which, after referring to the assignment and describing the lands, he said, "In consideration of your assignment of same will be held for you subject to my agreement"; that appellant now refuses to recognize the right of appellee and her children. Other facts are set forth in the bill; but we have stated what we conceive to be the legal substance thereof. Complainants submit themselves to the court and offer to do full equity. The special prayer of the original bill was that the "said alleged, purported, or attempted conveyance"-meaning the conveyance by Burgin and appellee-be vacated and declared to be void and of no legal effect. The special prayer of the amended bill is that a decree be made declaring appellant to hold the lands as trustee for complainants subject to a lien in his favor for amounts advanced by him with lawful interest and charges and that appellant be directed to execute and deliver to complainants "or to such of them as the court may determine" a conveyance of the lands in question upon the payment of the amount due appellant. There is also the general prayer for relief.

We have thus been at pains to state the substance of the original and amended bills, for, upon the facts so stated, or upon the difference between the two, depends the answer to at least one of appellant's serious contentions, which is that the amended bill exhibits a radical departure from the original bill such as the law of amendment will not permit.

The purpose of the bill in both its original and amended forms is to recover the lands described for appellee and her children, the widow and heirs at law of the deceased grantor. The original bill was obviously defective and demurrable in several particulars. Most important of these is the absence of an averment to show whether defendant entered into the transaction with appellees' intestate with or without notice of the latter's alleged insanity (Alexander v. Livingston, 210 Ala. 420, 98 So. 281), but that is of no consequence now (Fite v. Kennamer, 90 Ala. 473, 7 So. 920), for the substance of that bill was eliminated by the amendment, and the question now is whether the amendment bringing new matter into consideration was properly allowed-worked a radical departure, as the common expression is. We have a host of adjudicated cases bearing on this subject. Both parties have been able to cite cases which tend to support their respective contentions. That an essentially new and different case, working a radical change in the purpose of the suit, should not be allowed by amendment, would appear to be quite clear. But puzzling difficulties arise in determining what constitutes an essentially different case. The statute (Code, § 6558) provides that: "amendments to bills in equity may be filed as a matter of right"-herein changing the common law of equity, so to speak-"at any time before final decree *** to meet any state of evidence which will authorize relief." As disclosing the operation and effect of this statute, we quote from Winston v. Mitchell, 93 Ala. 559, 9 So. 552: "The usual tests are, whether the original and amended bills found the right of complainant to relief on different and consistent [or inconsistent?] titles (Penn v. Spence, 54 Ala. 35); or present entirely new or inconsistent claims, based on differing state of facts ( Ward v. Patton, 75 Ala. 207); or, whether the kind or character of relief, not the degree or extent, appropriate to one state of facts is inappropriate to the other; or whether the same defenses are applicable. Park v. Lide, 90 Ala. 246 ; Caldwell v. King, 76 Ala. 149. In other words, whether the matters of the original and amended bills could have been properly stated in the alternative in the original bill."

As we have stated, the original bill was fatally defective. It failed to state whether appellant had notice of the alleged insanity of appellee's intestate. The simple averment was that appellee's intestate was "a person of unsound mind and mentally incapacitated for the transaction of business." The prayer for relief was that the court "decree said alleged purported or attempted conveyance to be void"-a relief that the complainant on the facts there alleged could in no event have in equity. But that fact ought not to stand in the way of relief on the amended bill which averred facts justifying relief of like character with that sought by the original bill, for the "amendment merely varied the details of one and the same transaction." Milner v. Stanford, 102 Ala. 277 14 So. 644. In Harton v. Amason, 200 Ala. 596, 76 So. 954, the court, referring to King v. Livingston Mfg. Co., 192 Ala. 269, 68 So. 897, said: "As remarked in that case, the alteration of the theory upon which a result is to be reached, although new facts are interjected, is not a departure which is obnoxious to the rules of equity procedure." In A., T. & I. Co. v. Hall & Farley, 152 Ala. 262, 44 So. 592, references to numerous cases may be found in which it has been held that since the statute of amendment it is no objection that new matter or claims, vary the form of defendant's liability or the description of the transaction on which the liability is predicated, or enlarge the quantum of relief sought, provided such matters grow out of the transaction alleged in the original bill. In the case before us there is no departure from the transaction alleged in the original bill; the relief sought is the same, viz. restitution of the lands described; nor is there any repugnancy between the averment of the original bill that appellee's intestate was insane and that of the amendment setting up facts from which a resulting...