Tarver v. Tarver

• Decision Date: 30 April 1953
• Docket Number: 4 Div. 730
• Citation: 65 So.2d 148,258 Ala. 683
• Parties: TARVER et al. v. TARVER.
• Court: Alabama Supreme Court

Page 148

65 So.2d 148

258 Ala. 683

TARVER et al. v. TARVER.

4 Div. 730.

Supreme Court of Alabama.

April 30, 1953.

Brassell & Brassell and Homer W. Cornett, Phenix City, for appellants.

Smith & Smith and Roy L. Smith, Phenix City, for appellee.

STAKELY, Justice.

This is an appeal from a decree of the equity court sustaining the demurrer to the bill of complaint. The allegations of the bill of complaint show in substance the following. Joseph Tarver and eighteen other persons are the complainants and each is over the age of twenty-one years. Reese Tarver, who is over the age of twenty-one years, is the respondent. All of these parties are the heirs at law of Charles Tarver and Lizzie Tarver, being either their children or the children of their deceased children. Charles Tarver died on May 21, 1919, and Lizzie Tarver died on July 18, 1949. At the time of their deaths they owned about seventy acres of land lying in Russell County, Alabama, which is the subject-matter of this litigation.

On March 18, 1917, Charles Tarver and Lizzie Tarver executed a mortgage on the aforesaid lands to the Farmers & Merchants Bank of Hurtsboro, Alabama, to secure an indebtedness of $2,260.75. A copy of the mortgage is attached to the bill of complaint marked an exhibit and made a part of the bill of complaint.

At the time Charles Tarver died, R. C. Tarver, the respondent to the bill of complaint, took charge of all the property left by Charles Tarver, consisting of 18 bales of cotton, about 5 tons of corn, 5 mules, 6 head of cattle and 25 hogs, and in doing so led the complainants to believe and represented to them that he was using this property to pay the aforesaid mortgage indebtedness to the Farmers and Merchants Bank of Hurtsboro, Alabama, and 'induced your complainants to permit him to use the same in extinguishment or payment of said debt due said bank.'

Reese Tarver, however, did not pay the Bank of Hurtsboro and permitted the mortgage to be foreclosed by the bank without notice or knowledge to the complainants, who were at that time either minors or were absent from the state, one serving in the United States Army in France. A copy of the foreclosure deed is attached as an exhibit to the bill. It is alleged 'and complainants aver that the said Reese Tarver did fraudulently obtain title to said lands from said Bank of Hurtsboro, by representing to your complainants that the property left by the said Charles Tarver and the farm earnings from the farm for the current year were sufficient to pay off said mortgage.' A copy of the deed from the Farmers and Merchants Bank of Hurtsboro to Reese Tarver dated February 5, 1920, is attached to the bill of complaint and made a part thereof. It was recorded on February 9, 1920.

It is further alleged that Reese Tarver 'did obtain title to said lands from the Farmers and Merchants Bank of Hurtsboro by fraudulently representing to your complainants that he had used the cotton, corn and other products that were left by Charles Tarver to pay or extinguish the debt owing to the said bank by the said Charles Tarver; and complainants further aver that they relied upon said statements made by the respondent Reese Tarver, who had the active management of said lands, and complainants further charge that the said Reese Tarver worked a fraud upon them by permitting said mortgage to be foreclosed by the said Farmers and Merchants Bank of Hurtsboro and then purchasing the lands from the said bank with funds that belonged jointly to all the heirs of the said Charles Tarver, deceased.'

With reference to the complainants, it is further alleged that, 'they did not discover said fraud until the month of February, 1952, when they or some of them received notice in writing not to trespass on said lands and others who had continuously lived upon said lands received notice to pay rent or move from the premises.'

The allegations of the bill further show that on December 1, 1951, Reese Tarver made a mortgage to the Federal Land Bank of New Orleans in the sum of $1900, purporting to own in fee simple all of the lands and the complainants aver that 'the said Reese Tarver did not own but an one-eighth interest in said lands.' It is alleged that a copy of the mortgage to the Federal Land Bank of New Orleans is attached to the bill of complaint as Exhibit E and made a part of the bill.

It is further alleged that Reese Tarver after the execution of the aforesaid mortgage to the Federal Land Bank of New Orleans stated to the complainants that they all together had mortgaged the land and signed the mortgage and it was necessary to use the money so obtained to improve the lands. It is further alleged that the complainants relied upon the statements of Reese Tarver and paid their proportionate share due on the mortgage to the Federal Land Bank and that one of the complainants, Joseph Davis Tarver, paid the last payment to the Federal Land Bank of New Orleans for the benefit of the complainants and the respondent, the mortgage being marked paid and cancelled of record on July 26, 1946.

On April 18, 1922, Reese Tarver, the respondent, executed a mortgage to the First National Bank of Seale, Alabama, to secure an indebtedness of $796 on an undivided one-eighth interest of the estate of Charles Tarver, deceased. A copy of this mortgage is attached to the bill as an exhibit and made a part of the bill.

The complainants further allege that they and each of them had relied on the statements made to them concerning the payment of all debts due at the time of the death of their father, Charles Tarver, and had no knowledge that Reese Tarver had practiced a fraud upon them until February 6, 1952, at which time complainants were ordered to remain off the land or premises which is here involved.

The bill then contains allegations which aver the undivided interest of each of the complainants. A detailed statement of these interests not appearing to be necessary at this time, we do not set this out.

It is further alleged that the lands cannot be fairly and equitably divided or partitioned among the joint owners without a sale thereof. The bill further shows that the respondent Reese Tarver has had the use and profits accruing from the lands since the death of Charles Tarver on May 21, 1919, and in addition to the income from rents, sale of livestock, cotton, corn and other products of the land, valuable timber has from time to time been sold from the lands for which the respondent should account to the complainants and pay them their share of such rents, profits and moneys derived from the place.

The basic controversy which the case presents is whether the alleged rights of the appellants are barred by prescription, laches or the statute of limitations or whether the principles applying to cotenancy can save the situation for the appellants. Before, however, coming to the questions involved, it is necessary to take note of inconsistencies or omissions in the bill of complaint, because we must take the case as presented by the bill of complaint and the bill of complaint must be construed most strongly against the pleader. As has been shown above, it is alleged that Charles Tarver died on May 21, 1919, and Lizzie Tarver died on July 18, 1949, it being further alleged that at the time of their deaths they owned about seventy acres of land lying in Russell County, Alabama. However from the exhibits attached to the bill of complaint and made a part thereof, it is apparent that at the time of Charles Tarver's death he and one William Upshaw, Jr. each owned a one-half undivided interest in the property in...