Sibley v. Kennedy

• Citation: 224 Ala. 354,140 So. 552
• Decision Date: 17 March 1932
• Docket Number: 8 Div. 351.
• Parties: SIBLEY v. KENNEDY ET AL.
• Court: Supreme Court of Alabama

140 So. 552

224 Ala. 354

SIBLEY v. KENNEDY ET AL.

8 Div. 351.

Supreme Court of Alabama

March 17, 1932

Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr. Judge.

Bill to cancel a deed by J. H. Kennedy and Ollie Kennedy against E K. Sibley. From a decree overruling a demurrer to the bill respondent appeals.

Reversed rendered, and remanded.

H. H. Hamilton, of Russellville, for appellant.

W. H. Quillin, of Russellville, for appellees.

KNIGHT J.

The complainants (appellees), J. H. Kennedy and Ollie Kennedy, filed their bill in the circuit court of Franklin county, seeking the cancellation of a deed executed by A. M. Kennedy to the appellant.

The complainants aver that the said A. M. Kennedy died, intestate, in Franklin county on the 5th day of June, 1931, and that no administration has been had upon his estate. The present bill was filed on July 8, 1931. In their bill, it is averred that the complainant Ollie Kennedy is the widow, and the said J. H. Kennedy is the sole heir at law, of the decedent.

In addition to seeking cancellation of the deed to E. K. Sibley, the respondent, the bill also prays that homestead exemptions be set apart to the widow, and dower assigned to her in the lands attempted to be conveyed by said deed. In the second paragraph of the bill the complainants aver: "That Ollie Kennedy and the said A. M. Kennedy were legally married to each other on the 9th day of July, 1928, and that at the time of the death of said A. M. Kennedy the said complainant was the legal and lawful wife of the said decedent."

The bill also prays that the title of the complainants to "said lands" be quieted as against the said defendant and that he be declared to have no right, title, or interest therein.

With reference to the deed, which the bill seeks to have canceled, it is averred: "That said deed is without consideration and void; that said deed is a fraud on the rights of complainants in and to said lands; that said deed was secured or obtained by undue influence exerted by the defendant on or over the said A. M. Kennedy; that at the time of the execution of said deed the said A. M. Kennedy was incompetent by reason of insanity to convey land and execute a deed therefor; and that said deed was not executed on the day it bears date."

In another paragraph of the bill, it is averred: "That said deed was not executed on the 7th day of March, 1928 (the date it bears) but was executed on or about the 17th day of October, 1928 (being the day on which it was filed for record), and that said deed was executed without consideration being paid or moving from the defendant to said Kennedy, and that said deed was a sham or fraud and was not intended by grantor to convey the title to said land to the defendant, and that said deed was executed with the intent on the part of said Kennedy and for the sole purpose of defeating the rights of complainant Ollie Kennedy of dower and homestead and other rights which she had in and to said lands as the wife of said Kennedy under and by virtue of the Constitution and statutes of Alabama."

In section 7 of the bill, the complainants aver: "That at the time of the execution of the aforesaid deed the said A. M. Kennedy was incompetent to convey lands and to execute a deed therefor, that he had been incompetent to execute deeds and conveyances for more than three years next preceding the date of his death, by reason of insanity." His death occurred on June 5, 1931, and the marriage on July 9, 1928.

It thus appears that the alleged marriage of complainant Ollie Kennedy to said A. M. Kennedy occurred at a time when, as shown by complainants' bill, the said A. M. Kennedy was insane.

If Kennedy was insane when he attempted to enter into a marriage contract with Ollie Kennedy, the marriage was a nullity. It was void ab initio, and Ollie Kennedy acquired no rights under it, for to constitute a valid marriage "the essentials common to all contracts, capacity and consent, must be present." This exact question has heretofore been presented to, and passed upon by, this court. The late Chief Justice Stone, then a justice of this court, in the case of Rawdon v. Rawdon, 28 Ala. 565, speaking for the court, said: "The rule is well settled, on both sides of the Atlantic, that no contract is of any validity whatever, if either of the contracting parties be of unsound mind. Such contract is wanting in the essential element-the concurring assent of two minds; and hence the law pronounces it absolutely void. This rule is alike applicable to the marriage contract." Bishop on Marriage and Divorce, § 177; Bright on Husband and Wife, vol. 1, p. 2; Bell v. Bennett, 73 Ga. 784; Hagenson v. Hagenson, 258 Ill. 197, 101 N.E. 606; Hamaker v. Hamaker, 18 Ill. 137, 65 Am. Dec. 705; Castor v. Davis, 120 Ind. 231, 22 N.E. 110; Jenkins v. Jenkins' Heirs, 2 Dana (Ky.) 102, 26 Am. Dec. 437; Winslow v. Troy, 97 Me. 130, 53 A. 1008; Little v. Little, 13 Gray (Mass.) 264; Chapline v. Stone, 77 Mo.App. 523; Williamson v. Williams, 56 N.C. 446; Cole v. Cole, 5 Sneed (Tenn.) 57, 70 Am. Dec. 275; Eng. Browning Reony, 161 Reprint 1080.

In the case of Barfield v. Barfield, 139 Ala. 290, 35 So. 884, where there was a void marriage, this court held that in such case there were no dower or homestead rights.

Thus, under the averments of the bill, construing the same most strongly against the pleader, as we must do, the complainant Ollie Kennedy, in her effort to show that the deed of A. M. Kennedy was void by reason of the insanity of the maker, also made it to clearly appear that her marriage, falling as it did within the period of her husband's insanity, was subject to the same infirmity.

The demurrer presenting this objection should have been sustained.

The bill is also defective in not averring a description of the lands which were attempted to be conveyed by the deed. It should be sufficiently specific in this regard as to inform the court of the particular portion of the four hundred and forty acres which was conveyed by the deed. The bill avers that the deed conveyed the said lands (referring to the entire described tract), or a part thereof. The bill was subject to the demurrer in this respect, and the demurrer thereto should have been sustained.

Inasmuch as the bill does not negative the fact that the estate of A M. Kennedy owes debts, and in view of the fact that complainant Ollie Kennedy is seeking dower and homestead allotment in the lands, the personal representative of said decedent is a necessary party to the bill. Winsett v. Winsett, 203 Ala. 373, 83 So. 117; Code, § 7439. In the allotment of dower and setting apart of homestead...