Spruiell v. Stanford

• Decision Date: 04 December 1952
• Docket Number: 6 Div. 373
• Parties: SPRUIELL v. STANFORD et al.
• Court: Alabama Supreme Court

Page 758

61 So.2d 758

258 Ala. 212

SPRUIELL v. STANFORD et al.

6 Div. 373.

Supreme Court of Alabama.

Dec. 4, 1952.

Drennen & Drennen, Birmingham, for appellant.

Young & Young, Vernon, and Rushton, Stakely & Johnston, Montgomery, for appellees.

SIMPSON, Justice.

Bill in equity by a tenant in common to sell lands for division, with answer and cross bill by defendants for specific performance and to declare the interests in the land.

Motion to dismiss the appeal because of the belated filing of the transcript and submission of the case will be first considered. The decree was rendered December 30, 1950. The appeal was taken February 28, 1951, and the transcript was certified by the register May 22, 1951, but was not filed here until December 20, 1951. The cause was argued and submitted April 29, 1952. It appears, therefore, that from the time of taking the appeal, two calls of the Division had elapsed before the submission. Hence, the motion to dismiss.

Supreme Court Rule 48 has no application, as supposed by counsel. That rule applies to civil actions, not equity. The analogous rule in chancery is Equity Rule 56.

The pertinent provisions of the statute are §§ 769, 770, Title 7, Code 1940, and Supreme Court Rule 41. With respect to these provisions, this court observed in State v. Barton, Ala.Sup., 58 So.2d 450, 451:

'The construction this court has lately accorded these several provisions, as here pertinent, is, if appellant fails to comply by seasonably filing the transcript and makes no sufficient showing as justification or excuse for such failure, the appellee, if diligent, is entitled to have the appeal dismissed on motion. And this even though dismissal is addressed to the sound discretion of the court, since some showing of extenuation for failure to comply must be made by the appellant in order to invoke the exercise of the court's discretion. Parker v. Bedwell, 243 Ala. 221, 8 So.2d 893; Britton v. Bullen, 213 Ala. 659, 106 So. 138. See also Blair v. Thompson, 255 Ala. 613, 52 So.2d 692.'

The motion to dismiss cannot prevail for two sufficient reasons. First, the failure to timely file the transcript and submit the cause is satisfactorily explained by the fact that appellant's original counsel died, and the next employed counsel became seriously ill, and as soon as she became acquainted with the status of her cause, she employed her present counsel, who acted promptly in obtaining submission of the case. Second, appellees failed to avail of the privilege to file motion to dismiss at either of the calls of the Division, and made no motion until after the transcript had been filed and not until on submission of the cause. No prejudice is shown to have attended them by this late submission so as to justify granting their motion. Campbell v. Sowell, 230 Ala. 109, 159 So. 813; Luther v. Luther, 211 Ala. 352, 100 So. 497.

We, therefore, invoke our discretion and overrule the motion and will proceed to a consideration of the cause on its merits.

Appellant, Lona Spruiell, filed her bill alleging that she and her sister, Corda Stanford, one of the appellees, were the joint owners, or tenants in common, of three separately described tracts of land in Lamar County, which for convenience will be designated (1) the home place, containing eighty-seven and one-half acres; (2) the Kentucky Land Company forty acres; and (3) the Sorrell tract, containing about sixty acres. There was the customary allegation that the lands could not be equitably divided in kind and a prayer for a sale for division. Corda Stanford's husband, Cager Stanford, the other appellee, was made a party defendant to the bill on the allegations that there existed a joint adventure between the parties whereby they agreed to operate the home place, pay the then existing debts outstanding against it, and each of the parties to receive a one-third portion of the net income produced therefrom. It was further alleged that with an accumulation of partnership funds, appellant and appellees purchased the Kentucky Land Company forty acres and the Sorrell tract, but that the deeds of conveyance of these acquisitions were taken in the name of defendant, Cager Stanford. On the basis of these allegations, the bill prayed for a reformation of the land deeds to the two latter tracts of land so as to vest in each of the parties a one-third undivided interest therein, and for a sale for division of all the tracts, and for an accounting between appellant and appellees of the joint adventureship.

Defense of this bill was by way of answer and cross bill. With respect to the home place, the answer and cross bill affirmed the existence of an agreement of joint adventure between the parties, but alleged that the agreement was that after the existing debts were paid and the indebtedness of the deceased brother, A. R. Spruiell, who owned the other one-third interest in the home place, shall have been paid, each of the parties was to share one-third each in the title to the property. The cross bill alleged, in substance, that in December, 1932, Cager married Corda, at which time the complainant, Lona, and her sister, Corda, importuned him, Cager, to make his domicile on the home place, explaining to him the situation in regard to the indebtednesses against the property and owing by their deceased brother, A. R., and that they agreed with him that if he would make his domicile on the premises and manage and cultivate the land and pay the said existing debts, that 'the interest of said A. R. Spruiell would be procured from the legal heirs of said A. R. Spruiell other than complainant, Lona Spruiell, and defendant, Corda Stanford, and that the title to said land would be vested in the three of them in equal shares, and that they would all live together, operate the farm as a joint venture and share the income therefrom in equal shares; that the defendant, Cager Stanford, thereupon agreed to enter into such an agreement and did make his domicile on said premises and assumed the management and control thereof, cultivating the land, marketing the crops and generally supervising same', etc. The cross bill then alleged that by his management and individual effort, he succeeded in paying off the mortgage on the land and the debts left owing by the deceased brother, A. R.; that he improved the premises, erected new buildings, repaired old ones, and built fences and cleared and put into cultivation new ground; and in contravention of the said agreement of December, 1932, the complainant, Lona, without notice to him, did, on to wit, April 6, 1950, procure from the heirs at law of the said A. R. Spruiell the said deceased brother's one-third undivided interest in the home place, whereas the deed should have been made to Cager; wherefore, the cross bill prayed that the deed should be reformed so that the one-third interest thus acquired by Lona be decreed in him, the said Cager Stanford.

With respect to the Kentucky Land Company forty acres and the Sorrell sixty acres, the cross bill denied the allegations of the original bill and claimed that Cager had bought the two tracts himself with his own funds and was rightfully the owner of the full title to each of the tracts.

The decree, inter alia, granted the relief prayed for in the cross bill as regards the home place and vested a one-third undivided interest in each of the parties, sustained the answer to the original bill with respect to the Kentucky Land Company forty acres affirming the full title in Cager Stanford, and granted the relief prayed for in the original bill with respect to the Sorrell sixty acres and decreed that each of the parties was entitled to an undivided one-third interest therein. The assignments of error are directed to the features of the decree relating to these tracts of land.

The hearing was in open court, the testimony of the witnesses being given ore tenus before the trial judge. We repeat for emphasis the applicable rule that his conclusions on the disputed issues of fact had the force and effect of a jury's verdict, and unless palpably wrong or against the great preponderance of the evidence must be sustained. McCleod v. Willard, Ala.Sup., 60 So.2d 692(1); Stanley v. Beck, 242 Ala. 574, 7 So.2d 276; Rodgers v. Thornton, 254 Ala. 66, 46 So.2d 809.

As stated, we emphasize the foregoing rule. We cannot close our eyes to the situs of the property and the fact that the jurisdiction of the court encompassed a more or less rural area where the trial judge, in addition to having the benefit of hearing and seeing the witnesses testify, must have been acquainted with the witnesses, the parties, and the entire situation. Certainly, he was at a much better advantage to make up a correct decision on these disputed questions of fact than are we from reading the cold record, and we would be most reluctant to disturb his findings if they seem to be satisfactorily sustained by the evidence.

On a painstaking study of the record, we entertain the view that appellant has failed to establish that the decree was against the great preponderance of the evidence or manifestly wrong. Accordingly, it must be affirmed.

The Home Place

We have said the trial court granted the relief prayed for in the cross bill with respect to this piece of property, on the basis of the alleged agreement of joint adventure and decreed that appellee Cager Stanford, was entitled to a one-third undivided interest in the home place. This ruling is assigned as error. By the rule of favorable presumption attending the findings below under circumstances adverted to above, we are left unconvinced that this ruling should be overturned.

The most cogent argument challenging this feature of the decree is that the alleged agreement, on the basis of which Stanford was decreed a one-third undivided interest in the property, was oral and was within the bar of the statute of frauds, Subdiv. 5, § 3, Title 20, Code 1940, making void every...