Waller v. Nelson

• Decision Date: 17 May 1895
• Citation: 18 So. 154,106 Ala. 535
• Parties: WALLER ET AL. v. NELSON.
• Court: Alabama Supreme Court

18 So. 154

106 Ala. 535

WALLER ET AL. v. NELSON.

Supreme Court of Alabama

May 17, 1895

Appeal from chancery court, Montgomery county; Jere N. Williams Chancellor.

The original bill in this case was filed on March 8, 1893, by the appellee, Margaret S. Nelson, against William R. Waller, as administrator of the estate of Owen O. Nelson, deceased, the First National Bank of Montgomery, the Savannah, Americus &amp Montgomery Railway, and its receivers. The allegations of the bill are substantially as follows: In 1847 the complainant intermarried with O. O. Nelson, who died in May, 1892, and the defendant Waller was appointed his administrator in October, 1892. In 1882 the complainant became seised and possessed of a certain house and lot in Montgomery, Ala which, on May 29, 1890, she and her husband sold and conveyed to the Savannah, Americus & Montgomery Railway Company for $30,000, $10,000 of which was paid in cash, and for the remainder, $20,000, two notes for $10,000 each were given payable in one and two years, and secured by a mortgage back on the property. The bill then further avers that the notes and mortgage were delivered to her husband, never came into her actual possession, and that she had never disposed of them, nor authorized any one else to dispose of them; that shortly after the execution of the notes her husband brought them to her, and requested her to write her name on the back of them, without stating any reason for her doing so, which she did, without hesitation, and then gave them back to him that she did not know the effect of writing her name across the back of the note; that during all of her married life she had trusted and relied upon her husband in all matters of business, doing whatever he suggested; and by reason of this trust and confidence, she left the notes in his possession not doubting that he would hold the same for her. The bill further alleges that, after the death of her husband, complainant caused inquiries to be made and learned for the first time that the defendant the First National Bank of Montgomery had the notes and claimed them because they had been indorsed to it by her and her husband, and it had accounted to him for them; that the bank knew the notes were her separate property, and if any consideration passed to her husband for them, it was with the knowledge of the bank applied solely to his use and purposes, and not for her use and benefit; that the bank had never given her, prior to her husband's death, any notice of its claims or of its dealings with her husband in reference to said notes. The First National Bank of Montgomery and Waller, as administrator of O. O. Nelson, filed their answers to the bill of complainant on April 7, 1893, and averred therein that complainant and her husband sold and transferred both the notes and mortgage to the bank; that the transfer was made not only by the indorsement of the notes by complainant and her husband, but that they also executed an instrument in writing, attested by witnesses, by which they expressly transferred and sold to the bank the notes and mortgage, and also sold and conveyed to the bank all of their right, title, interest and estate in and to the property described in the mortgage; that, upon the delivery of the notes and written transfer and conveyance, the bank paid to her the amount it agreed to pay, to wit, $20,000. The answer further averred that after such transfer and delivery the complainant recognized the bank as the owner of the notes, and never questioned its right to the same until the commencement of this suit; that at the maturity of the first of said notes, the railway company applied to the bank for an extension, but the bank refused to grant it unless the complainant would consent thereto, and that thereupon she and her husband executed another instrument in writing, reciting that they had sold and transferred the notes to the bank, and consenting that it might grant the extension asked for. Subsequent to the filing of these answers, and by way of confession and avoidance of the matters of defense set up therein, the complainant, in January, 1894, amended her bill, and averred in said amendment that the bank claimed that she and her husband had executed these written instruments; not denying that she did, but averring that she had no distinct recollection or remembrance of having done so. The amendment further averred that if she did sign the said written instruments, she did so at the request and under the influence of her husband, and in his presence, without any knowledge of the character and purposes of the instruments, without having the same read or explained to her, and without having independent advice, or the opportunity of such advice, with reference to such papers. She denies that there was any discount of the notes with her knowledge and consent, and avers that, if there was any discount of the notes, it was not for her benefit, or with her knowledge and consent. The prayer of the bill, as amended, is that all writings made by complainant to the bank be declared null and void and canceled, that the bank be required to pay to her all the money it may have collected on the notes, and that the mortgage be foreclosed to enforce the payment of the balance due on the said notes. To this bill, as amended, the First National Bank of Montgomery and Waller, as administrator, separately demurred, the grounds of which demurrers were substantially as follows: (1) The bill should have averred facts showing the title of complainant, and not the conclusion of the pleader that she was seised of an estate in fee in and to the lands. (2) It was shown that complainant could read and write, and she was, therefore, bound to know that she had executed the transfer and assignment of the notes in question; and that she had waited nearly three years, and until after the death of her husband, before seeking to set aside said transfer and assignment, and was, therefore, barred by laches. (3) The bill as amended was a departure from the original bill in this, that in the original bill the complainant averred that she had never made any transfer of said notes and mortgage, while in the amended bill she averred she had, and sought to have such transfer set aside. (4) There was no allegation in the bill showing that the bank was a party to any fraud practiced by her husband on the complainant, or had any knowledge or notice of any fraud used by him in procuring her signature to the transfer and other papers. (5) The bill did not deny that she executed the transfer and other instruments. (6) The bill contained no averment of any facts or circumstances from which the law would draw the conclusion that the bank fraudulently influenced her to sign the transfer and acknowledgment. (7) The bill as amended sought to impeach the execution of the written instrument set up by defendants as a defense to the suit, and was not verified by affidavit. The respondents also moved to dismiss the bill for the want of equity. Upon the submission of the cause on the demurrers and the motion to dismiss, the chancellor overruled both the demurrers and the motion. ...