Stover v. Hill

• Decision Date: 26 October 1922
• Docket Number: 8 Div. 394.
• Citation: 94 So. 826,208 Ala. 575
• Parties: STOVER ET AL. v. HILL.
• Court: Alabama Supreme Court

94 So. 826

208 Ala. 575

STOVER ET AL. v. HILL.

8 Div. 394.

Supreme Court of Alabama

October 26, 1922

Rehearing Granted Dec. 7, 1922.

Appeal from Circuit Court, Lawrence County; Robert C. Brickell Judge.

Bill by Minnie Stover and G. E. Stover against J. W. Hill. Decree for respondent, and complainants appeal. Reversed and remanded.

In a bill to reform a deed so as to exclude from the description land previously conveyed to complainant, which was correctly described in the bill, allegations that it was intended by the deed to convey to the grantee 20 acres over on the mountain, that the grantee took possession of the 20 acres on the mountain, sold timber and posts off from it, and offered it for sale, were sufficient to put the grantee on notice as to the specific land he was averred to own by reason of the conveyance.

The amended bill alleges that A. J. Hill and J. M. Hill, the mother and father of the parties, prior to November 4, 1912 owned a certain farm in Lawrence county, known as the Torence place, containing about 80 acres; that they had expressed an intention that, at their death, this land should go to, and belong to, their daughter, Dora Chaney; that they placed said Dora and her husband, John Chaney, in possession of the land and allowed them to use and occupy it for a number of years at a nominal rental, telling said Dora and her husband to go ahead and make any improvements they desired, since it was their intention that Dora should have it at their death; and that said Chaney did so occupy and use the land for a number of years, making valuable improvements thereon, which improvements were located on the 20 acres involved in this suit.

It is alleged that prior to his death, J. M. Hill conveyed the land in question and other lands to A. J. Hill, the mother; that shortly before her death in 1915, A. J. Hill, in pursuance of the before stated intention, conveyed the Torence place to Dora Chaney-a copy of which conveyance is exhibited with the bill, bearing date November 4, 1915, reciting a consideration of $500 paid, and describing the land conveyed as N.E. 1/4 of the N.W. 1/4 of section 35, and S.E. 1/4 of S.W. 1/4 of section 26, township 7, range 6.

It is alleged that A. J. and J. M. Hill also owned lands known as the Puckett place, and expressed an intention that this tract should go to their daughter, Minnie Stover; that conveyance thereof was made by A. J. Hill to Minnie Stover on November 4, 1915. The mother, A. J. Hill, died November 21, 1915, after which Dora Chaney and her husband took possession of and rented the land for the year 1916, to one Stephenson. Thereafter Dora Chaney and Minnie Stover traded places, the one getting the Puckett place, the other, the Torence place and paying a difference of $300. A copy of the deed executed by Dora Chaney and her husband to Minnie Stover and her husband is exhibited with the bill, bears date December 20, 1915, and recites a consideration of $800. It is alleged that the complainants, the Stovers, continued said Stephenson as their tenant and, after crops gathered in the fall of 1916, themselves moved on the land and into the house occupied by the tenant, which is on the 20 acres in question.

The bill alleges that, prior to November, 1912, A. J. Hill, gave to the respondent, J. W. Hill, certain 60 acres of land, which respondent in November, 1912, sold A. J. Hill joining in the conveyance; and that on the same day the conveyance was executed the mother, A. J. Hill, undertook to give and convey to her son, J. W. Hill, 20 acres of other land, known at the time by the parties as 20 acres of land "over on the mountain"; that "said A. J. Hill executed the deed to respondent under which he is claiming in this case, intending at the time, as respondent then knew, to convey thereby said land on the mountain."

The deed from A. J. Hill to J. W. Hill bears date November 19, 1912, recites a consideration of $1, and conveys the N. 1/2 of S. E. 1/4 of S.W. 1/4, section 26, township 7, range 6.

The bill further avers that, A. J. Hill was without experience in describing land by land numbers; that, not intentionally but through mistake, she included in said deed to J. W. Hill 20 acres of the Torence place instead of 20 acres over on the mountain, and that the description in said deed of the land involved in this suit was a mutual mistake of the parties thereto; that the respondent, after the death of his mother, took possession of the 20 acres on the mountain his mother had intended to convey to him, claimed it as his own, cutting timber therefrom and offering the land for sale; that respondent knew his sister Dora Chaney had taken possession of the Torence place and had traded it to his sister Minnie Stover; that he knew Stephenson had occupied it as a tenant under Minnie Stover for the year 1916, and had made no objection, and never made any claim to the place until the winter of 1916; that he admitted on Christmas Eve of that year, to his sister Dora, that his mother did not intend for him to have the Torence place; but later, however, made written demand therefor and on January 30, 1917, filed statutory ejectment for the land in question, which, as appears, was transferred to the equity docket. At the time of filing the ejectment suit, it is alleged, complainants were, and have been since, in actual, peaceable possession of the land.

Paragraph 6, added by amendment, is:

"There is no suit now pending in any court except this suit to test the validity of any claim held upon said 20 acres of the Torence place by respondent J. W. Hill, and the said J. W. Hill claims or is reputed to claim, or have, or own some interest in, or title to, or incumbrance upon, said north half of the southeast quarter of the southwest quarter of section 26, township 7, range 6 west."

The amended prayer is:

"Wherefore, complainants pray that the said J. W. Hill be required to set forth and specify what title to, lien or incumbrance upon, said land, he holds, and by what instrument the same is derived or created, and that upon final hearing of this cause a decree be rendered reforming the deed of A. J. Hill to J. W. Hill, dated November 19, 1912, so that the same does not include the said north half of the southeast quarter of the southwest quarter of section 26, township 7, range 6 west, under which the respondent claims said land, or that said deed be canceled; that the said action of ejectment begun by the said J. W. Hill be enjoined, and the said J. W. Hill be perpetually enjoined from prosecuting said suit, or in any way claiming, or attempting to claim, said lands involved in this suit, or interfering with complainant's possession thereof, and complainants pray for all other and further relief to which they may be entitled, and for general relief."

G. O. Chenault, of Albany, for appellants.

Tennis Tidwell, of Albany, for appellee.

THOMAS J.

Initial proceeding was by suit on the law side of the circuit court and was for statutory ejectment in which J. W. Hill was plaintiff and G. E. and Minnie Stover were defendants. After execution of process, defendants by way of petition set up an equitable defense and indicated that Dora Chaney was a necessary party in interest as to a portion of the land sued for.

On consideration of the petition it was ordered that the cause be transferred to the equity side of the circuit court, under provisions of the statute (Gen. Acts 1915, p. 831, § 2), which cast upon the presiding judge the duty of deciding in which forum such cause should proceed and be disposed of. Claborne v. Nichols, 204 Ala. 282, 85 So. 415; Ellis v. Drake, 206 Ala. 145, 89 So. 388.

In attempting to recast the pleading in conformity with the requirements obtaining in courts of equity, the plaintiff, Hill, stated his cause by an original bill against Minnie Stover and Dora Chaney; and later G. E. Stover was permitted to intervene as a respondent. Respondents Stovers filed their answer, making the same a cross-bill, praying that complainant be restrained from prosecuting his suit for the possession of said lands or a portion thereof, and incorporated in their answer and cross-bill demurrer to the original bill.

Submission for decree on demurrers to the bill and cross-bill resulted in the sustaining of demurrer as to the failure of the bill to show that a certain deed or deeds represented therein to be "a will" had "been proven or probated as a will" (National Order, etc., v. Lile, 200 Ala. 508, 76 So. 450), and in overruling the ground of demurrer to the cross-bill that there is no equity therein for that the "conveyance sought to be reformed is shown to have been voluntary," etc. Larkins v. Biddle, 21 Ala. 252; Jones v. McNealy, 139 Ala. 379, 35 So. 1022, 101 Am. St. Rep. 38.

The original bill was amended to conform to the foregoing ruling on demurrer; complainant, Hill, answered the cross-bill and incorporated in such answer demurrers thereto; and respondent Chaney answered the bill as amended and the cross-bill.

On September 13, 1918, submission for final decree was had on the respective pleading and proof; and the trial judge without proceeding to a hearing and decision thereof, ordered that the submission be set aside, gave the respective parties a reasonable time to make the pleadings conform to his interpretation of the statute, so that the defendants at law should become the complainants in equity, and cast upon them the burden of proof. Conforming to this order, the respective parties reversed the order of their pleading, making the defendants at law, in the action of ejectment, the complainants in equity, the original plaintiff becoming respondent. Such action of the court in setting aside a submission is held to be within its inherent powers...