Tumlin v. Tumlin

• Decision Date: 02 December 1915
• Docket Number: 7 Div. 674
• Citation: 195 Ala. 457,70 So. 254
• Parties: TUMLIN et al. v. TUMLIN et al.
• Court: Alabama Supreme Court

70 So. 254

195 Ala. 457

TUMLIN et al. v. TUMLIN et al.

7 Div. 674

Supreme Court of Alabama

December 2, 1915

Appeal from Chancery Court, Cherokee County; W.W. Whiteside Chancellor.

Action by Jerry F. Tumlin and others against Julia C. Tumlin and others. From a judgment for the defendants, plaintiffs appeal. Reversed and remanded.

John T Norris, of Cartersville, Ga., and Willett & Willett and Merrill & Walker, all of Anniston, for appellants.

Goodhue Brindley & White, of Gadsden, Knox, Acker, Dixon & Sterne, of Anniston, and W.B. Harrison, of Talladega, for appellees.

SAYRE J.

This bill was filed by appellants for a partition, or, in the alternative, for a sale for division of a tract of land in Cherokee county. Appellants claim that the land was the property of Sarah Tumlin, their grandmother, and that an undivided interest descended to them through their father. Appellees claim to own the entire fee under the will of their father, Thomas Tumlin, whose wife Sarah Tumlin was. The will disposed of testator's estate by a general devise to these appellees, his daughters. It excluded these appellants, who are the children of a son, then deceased, from any part in the estate on the recited ground that they were already better provided for than would be appellees by the devise. The broad issue proposed by the pleadings and upon which the litigation in this cause has been fought out is as follows: Was the land in controversy the property of Thomas Tumlin at the time of his death, or did it belong to his wife, Sarah? No partial equities have been set up on either side, and the parties, though their contentions would give a hard aspect to the result in any event, have very correctly, so far as we can see, treated the issue thus presented as relating to the undivided and unincumbered ownership of the property in question by one ancestor or the other and as one to be properly determined by reference to the ownership of a certain contract of sale or bond for title to the history of which we will presently come. The record, which has been made up in this way, presents no substantial grounds for a different treatment, and we have therefore considered only the broad issue stated above.

In 1872, A.R. Wright, the then undisputed owner of this land, entered into an agreement for its sale to Thomas Tumlin and Reynolds Cantrell. Wright took notes for the entire purchase money, executing and delivering to the purchasers a bond for title. In 1876 Cantrell conveyed his interest to Tumlin. On March 15, 1881, Tumlin, to secure an account made and to be made with Ford, Glover & Hight, of Rome, Ga., executed and delivered to them a written transfer of his bond for title. At the same time Ford, Glover & Hight agreed in writing that, when such account or other indebtedness of Thomas Tumlin should be settled or paid off, then the bond was to be transferred back to him. On January 9, 1883, Ford, Glover & Hight, on Tumlin's request, executed and delivered to him a paper writing in words and figures as follows:

"On the 16th day of March, 1881, Thomas Tumlin transferred to us a certain bond for title, made by A.R. Wright to said Thos. Tumlin and Reynolds Carter, said bond dated on the 16th day of January, 1872. Now, so soon as pecuniary note made by Mrs. Sallie Tumlin to us on this day for the sum of twenty-five hundred and seventy-seven and 60/100 ($2,577.60) dollars to become due November 1, 1888, is paid, and when all accounts hereafter to be contracted by Mrs. Sallie Tumlin with us are paid, then we bind ourselves to reassign the said bond to her. This agreement is made in settlement of all contracts heretofore made in reference to the assignment of said bond and all our said agreements heretofore made are hereby canceled, January 9, 1883."

On the face of this instrument as it appears in the record before us there are some errors in the reference, but the bond for title to which the foregoing agreement relates is the bond made by Wright in 1872, and was the only evidence Tumlin had of his interest in the land in controversy. This instrument purports to have been executed in the presence of an attesting witness, and was found among Tumlin's private papers after his death. After the date of its execution the account on the books of Ford, Glover & Hight was made to run against Mrs. Tumlin. At that time Colonel Tumlin's affairs in this state were somewhat involved, and he was surety on an executor's bond in Georgia from which, probably, he anticipated trouble. Mrs. Tumlin enjoyed the affection and respect of her family and friends, and had inherited a considerable property in Georgia; but she was illiterate, and appears to have given no attention to affairs outside her household. She appears, indeed, to have committed her property and her business affairs to the management of her husband, doing whatever he suggested in the premises. At any rate, it is quite plain on the evidence that all transactions with Ford, Glover & Hight were managed by Tumlin for his own purposes, and that some considerable part--just how much does not appear--of the money advanced by them to him was applied to the purchase-money debt due to Wright. In the course of these transactions he spoke to Ford, Glover & Hight of the land in question as the property of his wife. In 1887 the indebtedness to Ford, Glover & Hight was settled; Mrs. Tumlin contributing to the settlement by making a deed of land owned by her in Bartow county, Ga. At the same time, according to the testimony of Glover, his firm executed a transfer of the bond for title to Mrs. Tumlin, and delivered the same, along with the bond itself, to Tumlin. The original of this transfer has not been produced, but, if the case in this regard rested upon the unsupported testimony of Glover, no sufficient reason could be assigned for doubting that some such paper was, in fact, executed and delivered as we have stated, and the presumption must be that it was executed in the manner and form efficacious to carry out the trust upon which Ford, Glover & Hight

held it, viz., that, upon the payment of the debt for which it was held as security, it would be assigned to Mrs. Tumlin.

And we must assume, since it was the duty of Ford, Glover & Hight to make a transfer, including delivery, to Mrs. Tumlin, and since nothing to the contrary appears, that the delivery was made to Thomas Tumlin as agent for his wife and for her use and benefit.

Afterwards Tumlin remained in possession of the land until February, 1906, when he died. During this period he paid the balance due to Wright, resided upon the property with his family, paying taxes, cultivating the land, receiving the proceeds of the crops grown, and in all respects managing it as his own, and it may be conceded that the intended that the land in suit, as well as other property he owned, should pass under the general devise in his will. Within a few months after his death Mrs. Tumlin died, and since then appellees have been in possession claiming under his will. In the meantime--that is, in 1893--the personal representatives of Wright, then deceased, recovered a judgment against Tumlin in the superior court of Floyd county, Ga., for the balance due on the purchase price of the land here in suit. Thereupon a suit was brought in Mrs. Tumlin's name against said representatives on certain promissory notes made by Wright, payable to Berrys & Co., and assigned to Mrs. Tumlin. Wright's representatives then filed a petition in the Georgia court against the Tumlins, representing that the Berrys & Co. notes had been credited on the purchase-money indebtedness, and praying an injunction against the further prosecution of Mrs. Tumlin's suit. Answering the petition for an injunction in behalf of himself and wife, Tumlin set forth the history of his purchase from Wright, and averred that:

"On the 15th day of March, 1881, said Thomas Tumlin transferred said bond to the firm of Ford, Glover & Hight, and on the 5th day of March, 1887, said Ford, Glover & Hight transferred said bond to the defendant Sarah Tumlin."

To the answer was attached an exhibit in the following language:

"Rome, Ga., Mch. 5, 1887.

"We transfer the bond made by Augustus R. Wright to Thomas Tumlin, dated 16th day of January, 1872, to a tract of land in Cherokee county, Ala., to Mrs. Sarah Tumlin, for value received, without any recourse on us in any way whatever. This March 5, 1887.

"Ford, Glover & Hight."

This answer purported to have been sworn to before a notary public in the state of Georgia. A copy of the record of the proceedings in the Georgia court, duly certified under the act of Congress, was offered in evidence. Appellees contend that the record proves nothing in this cause. In our...