Urquhart v. McDonald

• Decision Date: 30 June 1949
• Docket Number: 1 Div. 339.
• Citation: 42 So.2d 9,252 Ala. 505
• Parties: URQUHART et al. v. McDONALD et al.
• Court: Alabama Supreme Court

42 So.2d 9

252 Ala. 505

URQUHART et al. v. McDONALD et al.

1 Div. 339.

Supreme Court of Alabama

June 30, 1949

Barnett Bugg & Lee, of Monroeville, for appellants.

C L. Hybart and J. M. Coxwell, of Monroeville, for appellees.

PER CURIAM.

This is an appeal from a decree overruling a demurrer to a bill in equity. The bill is primarily one in the nature of a bill of review to cancel a decree of the probate court of Monroe County setting aside homestead exemption to the widow because of fraud in the procurement or concoction of said decree. The bill also seeks the cancellation of certain conveyances, but the relief in this connection is dependent upon the cancellation of the decree of the probate court.

The demurrer was to the bill as a whole, but if the bill did not state a case for the cancellation of the decree as against the demurrer interposed, then the demurrer should have been sustained. The decree sought to be vacated was rendered April 25, 1930. The bill was not filed until 1947. The statute of limitations for a bill of review will, by analogy, be applied to a bill in the nature of a bill of review. It was declared in Quick v. McDonald, 214 Ala. 587, 108 So. 529 532, that, by analogy of the statute of limitations to bills of review, no special features appearing, the limitation is fixed at three years, subject to the statute giving one year after discovery of the fraud. See also Cassady v. Davis, 245 Ala. 93, 15 So.2d 909.

It appearing on the face of the bill that it was filed more than three years after the date of the decree sought to be vacated, it was incumbent upon the complainant to allege facts to excuse the long delay in filing the present bill. We are of the opinion that complainant, appellee, has failed to do this in that the bill does not show how complainant obtained the information on which this suit was filed. Such a bill as this must allege with precision and accuracy not only when but how complainant came into a knowledge of the various facts alleged as constituting the right sought to be enforced. Duncan v. Williams, 89 Ala. 341, 350, 7 So. 416; Alabama Coal & Coke Co. v. Gulf Coal & Coke Co., 171 Ala. 544, 54 So. 685; Peters Mineral Land Co. v. Hooper et al., 208 Ala. 324, 94 So. 606.

Because of the failure of the bill to contain such averments, we are of the opinion that the ground of the demurrer taking the point that the bill was not filed within three years from the date of the decree sought to be cancelled should have been sustained. The decree of the trial court is reversed and one here rendered sustaining the demurrer. The complainant is given thirty days from the date on which the certificate of the clerk of this court reaches the register of the circuit court of Monroe County, in equity, to amend.

Reversed, rendered, and remanded.

FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.

BROWN Justice (concurring specially).

The complainants in this case are the grandchildren of W. D. Fountain, who as the bill in its body alleges died in the year 1927, seized and possessed of the house and three lots which he occupied as his homestead, described in the bill as located in Block 'F' of Monvil Park Addition to the Town of Monroeville, Ala. The proceedings in the probate court, a transcript of which is attached to the bill and made a part thereof, show that Fountain died on the 8th of November, 1926, leaving a widow and no minor children and that the said homestead was all the property he owned, that it did not exceed 160 acres in area nor more than $2,000 in value.

The decree of the probate court which the bill attacks was entered on the 25th of April, 1930, setting apart the property to the widow of decedent and vesting in her the legal title thereto. The proceedings on their face are in all things regular. The complainants Annie McDonald and Minnie Strock are the children of a daughter of said Fountain who predeceased him and George Fountain is a son of Alex Fountain, a son of said W. D. Fountain who predeceased said ancestor. The complainants so far as the allegations of the bill show were of full age at the time of the death of their grandfather. The bill was filed October 2, 1947, 20 years, 10 months and 24 days after the death of said W. D. Fountain and 17 years, 5 months and 7 days after the property was set apart by the Probate Court of Monroe County as exempt to the widow Bettie Fountain, vesting in her the absolute fee simple title, and fifteen years after the death of the widow in the year 1932. Bettie Fountain executed and delivered to her daughter Mrs. Riley a warranty deed to said property reciting a valuable consideration therefor on the date of the decree, April 25, 1930. Mrs. Riley and husband on March 8, 1933, conveyed by warranty deed to the respondents Urquhart, Snider, Barnes and McDonald for a recited consideration of $1 and other valuable considerations, reserving in Mrs. Riley a life estate. These deeds were both promptly recorded in the probate office of Monroe County, Alabama, the last mentioned on the 9th of March, 1933, the day after its execution.

The basis for the relief prayed is stated in the 5th paragraph of the bill as last amended as follows. 'That your complainants and respondents are the heirs at law of W. D. Fountain, deceased, and that your complainants were never given any notice of the hearing of said petition and the appraiser's report either by citation or otherwise, and that they never signed said alleged acceptance of service of said notice. Copies of which are hereto attached as Exhibits E-1, E-2 and E-3. That they have examined their purported signature to said acceptance of notice which is on file in the Probate Court of Monroe County, and that the purported signatures are not theirs and that they have never authorized any one to sign said acceptance of service, nor did they know of any such proceedings on the part of the widow, Bettie Fountain, in petitioning the Probate Court to set aside said lands as her homestead or any such proceedings in said court relative to the setting aside of said homestead to the widow of W. D. Fountain, deceased, and had no knowledge of anything that would lead them to know or believe or cause them to make inquiry that such a proceeding was being had in the Probate Court of Monroe County, Ala., relative to setting aside a homestead to Bettie Fountain, the widow of W. D. Fountain, deceased. That at the time of said purported proceedings in the Probate Court of Monroe County that the aforesaid property was worth Twenty-five Hundred Dollars ($2500.00) or more.'

The bill seeks to cancel the proceedings in the Probate Court of Monroe County on the grounds stated in said paragraph and to cancel the deed executed by Bettie Fountain to Mrs. Riley and the deed of Riley and wife to the respondents now in possession of the property, alleging that the adverse claim did not come to their knowledge until the death of Mrs. Riley a short time before the filing of the bill. There is an absence of allegation that during the twenty years and more the persons in possession ever recognized the rights of complainants to any interest in said lands.

The demurrer challenges the bill for want of equity and on specific grounds, among others.

'5. It clearly appears from the allegations of the amended bill of complaint that complainants are guilty of laches which should be held to bar them from maintaining this suit.

'6. It affirmatively appears from the allegations of the amended bill of complaint that Nannie F. Riley had held adverse possession of said property sufficiently long to perfect title in her by adverse possession.

'7. It appears from the allegations of the amended bill that Nannie F. Riley was an innocent purchaser of said property with no notice of the claim of complainants and that her conveyance to Lucy Urquhart, Fannie Snider, Viola McDonald and Daisy Barnes was likewise free from any such notice.

'8. It affirmatively appears that the said Nannie F. Riley acquired title to said property as an innocent purchaser on April 25, 1930, and held the same adversely under said title continuously until her death on January 21, 1947; and that no inquiry was made by complainants as to why she was in possession and no demand was made upon her for any accounting for rents or otherwise, and that during all this time the deed to her was upon the public records of Monroe County, Alabama.

'9. Nothing in the allegations of the amended bill charge the said Nannie F. Riley, or the present owners of the lands, with being a party to the alleged fraud, nor as having any knowledge that complainants claimed fraud as alleged.

'11. This cause was barred by the Statute of Limitations of ten years prior to the filing of the suit.

'12. Under the circumstances alleged in the amended bill, the complainants were charged with knowledge of the deeds from Bettie Fountain to Nannie Fountain (named as Nannie F. Riley) and from Nannie F. Riley and husband to Lucky Urquhart, Fannie Snider, Viola McDonald and Daisy Barnes from the date they were filed for record.

'13. It clearly appears from the allegations of the bill that Nannie F. Riley, as an heir of W. D. Fountain, would have no exclusive right to the possession of this property after the death of her mother, Bettie Fountain, during the year 1932; but if she had occupied the same as an heir of the said W. D. Fountain, she would have been legally bound to account to the other joint owners for rents.

'15. That allegations of the amended bill show that the said Bettie Fountain was the widow of the said W. D Fountain; that she proceeded in the way provided by law to have the property in question set apart to her as exempt; that it was so set apart by a court of competent jurisdiction...