Thomas v. Tilley

• Citation: 147 Ala. 189,41 So. 854
• Parties: THOMAS v. TILLEY ET AL.
• Decision Date: 09 May 1906
• Court: Supreme Court of Alabama

41 So. 854

147 Ala. 189

THOMAS v. TILLEY ET AL.

Supreme Court of Alabama

May 9, 1906

Rehearing Denied June 30, 1906.

Appeal from Chancery Court, Tuscaloosa County; A. H. Benners Chancellor.

"To be officially reported."

Bill by J. M. Thomas against C. A. Tilley and others. From a decree in favor of defendants, complainant appeals. Affirmed.

Henry Fitts, for appellant.

Daniel Collier and M. T. Ormond, for appellee Meadows. H. A. Jones for appellee Sullivant.

SIMPSON J.

The original and amended bills in the case, filed by appellant set up the claim that J. W. Thomas, the father of the complainant, J. M. Thomas, in his lifetime gave to complainant a certain note and mortgage, which is admitted to be due, by J. L. Tilley and C. A. Tilley, defendants; and the prayer is that the court establish the transfer as valid and foreclose the mortgage. The widow and heirs of said J. W Thomas controvert the fact of the assignment and transfer of said note and mortgage.

The testimony for the complainant, beyond his own, which was properly objected to as violative of section 1794 of the Code of 1896, was, first, by the wife of the complainant, who testified that, shortly after the execution of the Tilley mortgage, John W. Thomas told her that he had sold the land to Tilley and taken the mortgage, in order that he might give it to complainant; also that on one occasion her said husband and his father came to her home together; that her husband had the mortgage and note, and handed it to her, telling her to put it away; that she placed it in a trunk, where it remained until after the death of J. W. Thomas; that other papers of J. W. Thomas were subsequently brought by her husband and placed in the same trunk, which are not claimed by said J. M. Thomas; that on the occasion in question said J. W. Thomas remained at his said son's house from Friday evening until Monday morning, and told her several times "that he had given the paper to Johnny," and as he was leaving told her not to let John (her husband) forget to get other papers which he had left at the courthouse, and he told her again as he was leaving that he had given the mortgage to John. The note and mortgage were on one paper, and were not indorsed by said J. W. Thomas. A son of the complainant, 20 years of age, testified that he remembered when his grandfather came to the house with his father, and heard him tell his mother "that he had given the Tilley mortgage to my father, in the courthouse." The witness Richard Malone testified that John W. Thomas told him on one occasion that he was going to give some notes, which J. L. Tilley and another had made to him, to his son John M. Thomas, because he had never given him anything, and that he believed he (J. W.) would not live long. He never heard him say that he had given them. He states that said J. W. Thomas made this statement to him once when he was going to market at Tuscaloosa, and another time at said J. W. Thomas' home, and that witness' wife, Roxie Malone, was present on the latter occasion.

Gilbert Meadows, a witness for the defendants, a son-in-law of J. W. Thomas, testified to a conversation with said decedent in January or February, 1901, not long before his death, in which said Thomas wished him to take care of the Tilley mortgage and other papers for him. W. K. White, a witness for the defendants, testified to a conversation in the presence of himself and Capt. James White, between J. W. Thomas and his son, J. M. Thomas, shortly after the Tilley mortgage was made, in which said son was trying to persuade his father to let him have the Tilley land, or land notes, and the father replied that he could not let him have the property, because it would be doing too much for one child and none for the rest. He testified, further, that said J. W. Thomas came to the camp where witness and said Capt. White were on that night, and had a conversation with said Capt. White, in which Thomas said that he did not let his son have the Tilley notes or land, and that he was going to treat all his children alike. Francis Cooper, witness for defendants, testified to a conversation with J. W. Thomas, shortly before he died, in which said Thomas said that he had not given the Tilley mortgage and other papers to his son, but had merely placed them in his hands to take care of them for him, as he was afraid his wife would destroy them. Alabama Sullivant, formerly the widow of J. W. Thomas, testified to a conversation between the father and son, just before the former died, in which the father told his son that he wished this Tilley mortgage to be divided between said witness and said J. M. Thomas and his two girl children. Three witnesses testified that Capt. James White died before the time fixed by W. R. White for the conversation between said J. W. Thomas and said Capt. James White. Willey Sullivant testified in a general way to hearing John W. Thomas say he was going to do something for his son J. M., and giving reasons therefor.

The testimony as to the mental condition of J. W. Thomas was conflicting, and probably not sufficient to show that he was incapable of...