Ward v. Chambless

• Decision Date: 15 June 1939
• Docket Number: 3 Div. 286.
• Citation: 189 So. 890,238 Ala. 165
• Parties: WARD ET AL. v. CHAMBLESS.
• Court: Alabama Supreme Court

189 So. 890

238 Ala. 165

WARD ET AL. v. CHAMBLESS.

3 Div. 286.

Supreme Court of Alabama

June 15, 1939

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Statutory bill to quiet title to real estate by Sallie S. Chambless against Eleanora Ward and another. From a decree for complainant, respondents appeal.

Affirmed.

Files Crenshaw, of Montgomery, for appellants.

Blakey Blakey & Levin, of Montgomery, for appellee.

KNIGHT Justice.

Statutory bill by Sallie S. Chambless against Eleanora Ward and another to quiet title to certain lands in the City of Montgomery Alabama, and which are fully described in the bill.

The record discloses an anomalous proceeding in the cause, in the court below, as we shall point out.

In the bill the oath of the defendants to their answer was expressly waived, and the answers filed were without oath.

Rule 34 of Chancery Practice is: "An answer to which the oath of the defendant is waived cannot be excepted to for insufficiency."

Notwithstanding this rule of practice which has been in existence for many years in this state, the complainant filed exceptions for insufficiency to the answers of the defendants, and the court sustained the exceptions, allowing the defendants ten days from the date of the decree within which to make further answer, if so advised.

The defendants made no further answer, and the court on November 9, 1938, entered a decree pro confesso against the defendants. This decree, omitting formal facts, is in the following language: "It is, therefore, ordered, adjudged and decreed by the court that said bill of complaint in this cause be and the same is hereby in all things taken as confessed against said Eleanora Ward and Virginia Ward Barnes, the said respondents, as aforesaid."

The record further shows that the cause was submitted on the part of the complainant on; 1st bill of complaint as amended, and (2) decree pro confesso against defendants. The defendants offered no testimony. This submission was on January 6, 1939, and on same day the court entered a decree holding that the respondents "have no right, title or interest in, or incumbrance upon the lands described in the bill of complaint in this cause, nor any part thereof * * *." The court then proceeds to adjudge that the complainant is the owner of said lands.

The complainant having waived answer under oath had no right to except to such answer for insufficiency; and the court's action in sustaining such exceptions was erroneous by reason of the prohibition of Rule 34 of Chancery Practice. Likewise, the court's action in granting a decree pro confesso against the defendants was erroneous. Rechard et al. v. Cowley, 202 Ala. 337, 80 So. 419.

However, the appellants--defendants--did not in the court below make the point that the bill of complaint waived oath to answer and that under Rule 34, Chancery Practice, no exceptions for insufficiency could be taken, nor have they made any such insistence here. Both sides have argued the case on its merits, and we will do likewise, treating the cause as submitted on bill and answer, and ignoring the decree pro confesso. The answer in no way controverts the jurisdictional facts averred in the bill, but rather admits them. We will, therefore, consider the case on its merits. In pursuing this course we are not without precedent. Richards v. Daugherty, 133 Ala. 569, 31 So. 934.

It appears from the answers of the defendants that Richard Anderson and Addie Anderson, husband and wife, owned the property in question as tenants in common, each owning an undivided moiety therein, and that they, as such tenants in common, executed in 1908 a mortgage on this property to the Union Bank and Trust Company, to secure an indebtedness of $1,000, and the interest to accrue thereon. Said mortgage was recorded in Mortgage Record Book 207 at page 213, in Probate Office of Montgomery County, Alabama. That after the execution of said mortgage, the said Richard Anderson executed a deed of gift of his one-half undivided interest in said lands to his wife, the said Addie Anderson, for her life, and at her death to the respondent Eleanora Ward "for the term of her natural life," and at her death to the said respondent Virginia Josie Ward (now Barnes) her heirs and assigns forever, reserving in said deed a life estate in himself. This deed was recorded on June 26, 1911, in the Probate Office of Montgomery County, in Deed Record Book 80, at page 32. The said Richard Anderson died in 1911, and by his death his possessory interest terminated.

On the 4th day of March, 1912, the said Union Bank and Trust Company duly transferred the mortgage executed to it by said Andersons to Mary Garside Harris, the said transfer being recorded in Deed Book 84, at p. 447, in the office of the Judge of Probate of Montgomery County; that thereafter on June 21, 1912, the said Mary Garside Harris transferred said mortgage to the said Addie Anderson, the widow of the said Richard Anderson, and who was, as above stated, one of the mortgagors.

It also appears that the said Addie Anderson transferred the said mortgage to Eliza D. Noble, said transfer being dated November 18, 1913, and recorded in Deed Book 104, p. 303. That on May 23, 1918, the said Eliza D. Noble foreclosed said mortgage and at said foreclosure sale C. W. Cooper became the purchaser, and on July 10, 1918, the said Cooper sold and conveyed the property to J. A. Chambless, the foreclosure deed being duly recorded in Deed Book 118, page 442, in the office of the Judge of Probate of Montgomery County.

The answer also contains this further admission or statement, "And the complainant did inherit said property through the will of said J. A. Chambless."

It is not denied that the complainant, and her husband, the said J. A. Chambless, through whom the complainant acquired her title, have been in the possession of said property under the said foreclosure deed since July 10, 1918.

There is no hint or suggestion that the complainant or her said husband has ever recognized any right or interest in the respondents, or in either of them in or to said lands since the said J. A. Chambless acquired the property in 1918.

In their answer the respondents aver that they are non-residents of the State of Alabama, and in an effort to acquit themselves of any imputation of laches make this averment: "Respondents further aver and show unto the Court that respondents' father, Richard Anderson, died on, to-wit, June 16, 1911; that while his estate was being administered said Addie Anderson did represent and state to respondents that she through her attorney would see that the mortgage to said Union Bank & Trust Company was paid out of the funds of the estate of respondents' father, Richard Anderson; that Victor H. Tulane was administrator of said estate of Richard Anderson, deceased, and that Victor H. Tulane did state and represent to respondents that he as such administrator paid said mortgage indebtedness out of the assets of said estate; that respondents were never called upon by said Addie Anderson at any time to contribute to the amount paid by said Addie Anderson for the transfer of said mortgage from Mary Garside Harris to herself."

There is no averment that the debt secured by the mortgage was ever presented or filed as a claim against the estate of the said Richard Anderson, nor that the said J. A. Chambless or the complainant knew of the statements or promises made by the said Addie Anderson or by the administrator of the estate of said Richard Anderson, deceased. Nor is it even hinted or suggested that the said transferees, other than the said Addie Anderson, knew anything of said statements or promises of said Addie Anderson and said administrator.

It is not averred or even hinted in the answer of the respondents that they at any time prior to the filing of the bill in this cause, November 10, 1937, offered to contribute any amount to the payment of said mortgage indebtedness in order to protect their rights in the property. However the answer closes with this paragraph: "Respondents offer to contribute any amount the Court considers fair and equitable as their share of the amount necessary to be paid by said Addie Anderson to effect the transfer of said mortgage to her on June 21, 1912, and submit themselves to the jurisdiction of the Court and offer to do whatever to the Court seems equitable and just in the premises."

We have set out the facts, as they appear in the answer, rather in extenso, in order that our conclusion thereon may be more easily understood.

It is obvious from the foregoing that whatever right or interest the respondents acquired in and to the one-half undivided interest in the lands, they acquired the same under the conveyance of their father in 1910. The father died in 1911, and the life estate given to his wife, the said Addie Anderson, then came into possession, and this life tenant also died in 1921. So, then, a period of sixteen years elapsed since the death of Addie Anderson, before the filing of respondents' answer, and some nineteen years since the foreclosure of the mortgage given by the respondents' father and his wife to the said Union Bank and Trust Company, during which time the foreclosure deed has been on record, and the complainant and those under and through whom she acquired title have been in the possession of the land under claim of title and ownership, and without recognition of any right or interest in the respondents. Notwithstanding these facts, notice of which was and is chargeable to the respondents, they made no effort at any time through these years to redeem the property from the mortgage foreclosure sale, or to contribute to the redemption of the same.

Whatever may have...