Watt v. Lee, 7 Div. 571.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, Justice.
• Citation: 238 Ala. 451,191 So. 628
• Docket Number: 7 Div. 571.
• Decision Date: 05 October 1939
• Parties: WATT v. LEE ET AL.

191 So. 628

238 Ala. 451

WATT
v.
LEE ET AL.

7 Div. 571.

Supreme Court of Alabama

October 5, 1939

Rehearing Denied Nov. 2, 1939.

Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.

Suit in equity by Zera Appleton Lee and J. T. Tracy, as administrator of the estate of Emma C. Watt, deceased, against Nellie Watt, for partition of lands, etc., in which there was a cross-bill by respondent seeking to have title vested in her. From a decree for complainants, respondent appeals.

Affirmed. [191 So. 629]

Reed & Reed, of Centre, and W. T. Murphree, of Gadsden, for appellant.

Irby A. Keener, of Centre, and McCord & McCord, of Gadsden, for appellees.

THOMAS, Justice.

The proceedings from which the appeal is prosecuted had for its purpose the partition of lands by the alleged joint tenants.

The secondary question presented is the ascertainment of the amount of unpaid claims due by the estate of Mrs. E. C. Watt, deceased, to provide for payment of the same by making it a lien on the property of the respective owners of the land who were forced to discharge such property of said respective liens.

The death of Mrs. Watt is alleged in the initial pleading as of August 6, 1928. It is further asserted that she was the owner of the lands in question, left surviving two children--Nellie Watt, appellant; and Lillie L. Appleton, the mother of appellee Zera Appleton Lee. The death of Mrs. Appleton is alleged to have occurred on August 5, 1930, leaving surviving the appellee as her sole heir at law. Attached to the bill as an exhibit is a plat of the farm lands alleged to be a fair and equal division thereof. This the court adopted in the decree, the recitation being contained therein of a personal inspection of the premises by the court rendering the decree. The prayer of the bill is that the lands be divided according to such plat or map, that the debts owing by the estate of Mrs. Emma C. Watt be adjusted, and that the respective owners of the land be required to pay a due portion of such debts as by the decree may be made a charge against the respective allotments.

The bill was answered by Miss Watt, the appellant, asserting affirmative relief [191 So. 630] by way of cross bill, and appellee answered the amended pleading.

The cross bill alleges, among other things, that the father of the respective parties, John S. Watt, died June 4, 1903; that about the year 1905 his widow, mother of the original parties, advanced to her daughter Lily the full amount of her interest in and to the estate of Mrs. Watt; that Zera Appleton Lee, representing such interest as the mother had, does not own and is not entitled to an equal division of the assets of the estate of Emma C. Watt for the reasons specifically stated in the pleading, and that the lands described in the pleading were the separate estate of Mrs. E. C. Watt and not that of her husband at the time of the death of her said husband.

It is further alleged that Lily Appleton, desiring to anticipate her distributive share or interest in her mother's estate, had the mother to make settlement with her in full of such interest; that arriving at such interest or settlement, the lands were surveyed and appraised at $10,000 by disinterested persons selected by the respective parties; that Mrs. Appleton, in anticipation of her distributive interest in the mother's estate and lands, accepted one-third or more of the appraised value of such lands, which sum of money was paid by her mother and received by the said Lily Appleton in payment and satisfaction of her interest in all of the said mother's property, and that Mrs. Appleton procured a home in Gadsden therewith.

The respective issues were presented in the trial court by oral testimony given before the register acting as commissioner; was transcribed and used by the court in rendition of the decree. Under such circumstances this Court, without indulgence as to the correctness of the decree, will consider the entire record; and if the decree is erroneous, render such decree as the lower court should have rendered or reverse the cause with direction that the lower court render a proper decree in the premises. Wood v. Foster, 229 Ala. 430, 157 So. 863; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Code of 1923, Section 10276, Subsection 1.

Of the law that obtains, it should be observed that, in any suit for partition of lands or other properties by alleged joint owners, the defense that complainant's ancestor was paid in full his or her interest in the estate having been pleaded, was a defense resting on estoppel and is properly presented by answer and cross bill. Smith v. Hood et al., 212 Ala. 554, 103 So. 574.

The doctrine of equitable estoppel by matter in pais, though the title to land may rest in parol, and unavailing in law, may be given full effect and operation in a court of equity. Hendricks v. Kelly, 64 Ala. 388; Ivy v. Hood, 202 Ala. 121, 79 So. 587.

In Wefel v. Stillman, 151 Ala. 249, 265, 44 So. 203, 209, it is said: "* * * 'Generally speaking, estoppels in pais are available as well at law as in equity. This is true even of the so-called equitable estoppel. Indeed, it has been laid down that the estoppel is not available as such in equity, but that there must be some equity apart from the estoppel to give a court of equity the right to entertain it.' Big, on Estop. (5th Ed.) 557, 675, 712; Drexel v. Berney, 122 U.S. 241, 7 S.Ct. 1200, 30 L.Ed. 1219; Jones v. Peebles, 130 Ala. [ 269] 273, 30 So. 564; Hill v. Huckabee, 70 Ala. 183; [[First Nat.] Bank v. Leland, 122 Ala. 289, 25 So. 195; Duchess of Kingston's Case, 1 Smith's Leading Cases, 805 et seq. 'The doctrine (of estoppel in pais) originated in chancery, but it is now adopted by the courts at law. It is accordingly established that, when an act or statement cannot be withdrawn without a breach of faith on the one hand and injury on the other, it will rise from the rank of evidence to that of an estoppel, and bind the jury in opposition to the clearest evidence.' 1 Smith's Leading Cases, supra, 859."

It has been recently observed of estoppels by judgments and proceedings in trial courts, in Bromberg v. First Nat. Bank of Mobile, 235 Ala. 226, 228, 178 So. 48, 50, that:

" 'It is a familiar statement of the law of

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