Wilkerson v. Wilkerson

• Citation: 161 So. 820,230 Ala. 567
• Decision Date: 30 May 1935
• Docket Number: 6 Div. 732
• Parties: WILKERSON v. WILKERSON.
• Court: Supreme Court of Alabama

161 So. 820

230 Ala. 567

WILKERSON v. WILKERSON.

6 Div. 732

Supreme Court of Alabama

May 30, 1935

Rehearing Denied June 20, 1935

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Bill in the nature of a bill of review by Mary Emma Wilkerson, a non compos mentis, suing by her next friend, Louise Suttles against Lula Lee Wilkerson, individually and as executrix of the estate of Abner J. Wilkerson, deceased. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Earl McBee and Walter H. Anderson, both of Birmingham, for appellant.

W.B Harrison and Marvin Woodall, both of Birmingham, for appellee.

FOSTER Justice.

This is a suit in equity whose equitable right is dependent upon the sufficiency of the bill against demurrer as an attack upon a decree of the chancery court of Barbour county rendered on December 16, 1903, in which that; court granted a divorce to A.L.J. Wilkerson (said to be Abner J. Wilkerson) from his wife there named as Emma Wilkerson. After the divorce, and on January 18, 1904, Wilkerson married Lula Lee Woodall (or Wood) by authority of license that day issued, and lived with her as such wife until he died in 1932.

He was married to Emma or Mary Emma, as the bill alleges, in September, 1896, and in October, 1903, filed a bill in chancery in Barbour county; that the jurisdiction of that court was fraudulently invoked, in that it alleged that he was a resident of that county, when he was not such a resident, but resided in Jefferson county; and in that it alleged that Emma voluntarily abandoned him in April, 1897, when in fact she never abandoned him at all, but in 1897 they were living together as man and wife, and a child was born to them in 1901; that in 1902 he joined in proceedings in Atlanta, Ga., to have her committed to the insane hospital in Milledgeville, Ga., and that she has been there, insane, ever since then, and was so at the time the bill for divorce was filed against her: that there was fraud also in alleging in the bill that she resided in Atlanta, Ga., whereas she was in the insane hospital in Milledgeville, which was known to him; and in alleging that she resided in Atlanta, when she was a resident of Alabama; that he filed the suit in the name of A.L.J. Wilkerson so as to conceal his identity as complainant; that the decree was rendered on fraudulent and perjurious testimony; and upon publication of notice, and without further notice to her; that she was not represented by guardian ad litem nor otherwise; that her insanity was fraudulently concealed from the court; that she still is insane, and knows nothing about the proceeding.

The bill is filed in the name of Mary Emma Wilkerson by Louise Suttles, as next friend, who is a daughter of Mary Emma and Abner.

It also alleges that the divorce proceedings are void on their face, because they do not show that a copy of the order of publication was mailed to respondent as required by law; because the affidavit does not state her post office address was unknown, but only that it was Atlanta, Ga., which was a large city and an insufficient address was given; that there was no legal service on defendant; and fails to allege that the voluntary abandonment continued two years next preceding the filing of the bill.

The bill then alleges that he left a last will and testament which was probated in Jefferson county in January, 1933, by which he made a bequest of $25 to Louise Suttles, the next friend of complainant, and their daughter, and that Lula Lee Wilkerson was the sole beneficiary of the residue, of the value of about $20,000, and that she was the named beneficiary in certain life insurance policies. The prayer of the bill was to require Lula Lee to execute bond as executrix, of which the will relieved her, and that the decree of divorce be adjudged null and void, and that complainant have her dower and distributive share of the estate awarded to her.

It appears therefore that the question of importance depends upon the right to have the decree of divorce annulled for (a) fraud, or for (b) invalidity apparent on its face. The bill was filed in this suit January 26, 1934, and the decree of divorce was entered December 18, 1903, and he and Lula Lee were married January 18, 1904, and he died December 5, 1932. So that the bill was filed thirty years and one month after the decree was entered, and thirty years after he married Lula Lee, having lived with her as his wife twenty-nine years before he died, and it was not filed until after his death.

The attack by demurrer on the bill, among other grounds, is that it shows that the right to vacate the divorce decree for fraud is barred by the rule of prescription of twenty years, and that it does not on its face show invalidity.

Since an early period in this state, prescription has been in force, created by the chancery court as a rule of repose, and it is thus stated in McArthur v. Carrie, 32 Ala. 75, 88, 89, 70 Am.Dec. 529, by Stone, J.: "In this, as in most of the States of this Union, there is a growing disposition to fix a period, beyond which human transactions shall not be open to judicial investigation, even in cases for which no statutory limitation has been provided. *** By common consent, twenty years have been agreed on, as a time at the end of which many of the most solemn transactions will be presumed to be settled and closed." And in Garrett v. Garrett, 69 Ala. 429, it is said: "So sweeping is the principle in its scope and operation, that the presumption raised by it is not arrested or rebutted by the proof of any disability, such as infancy or coverture, on the part of the distributees by whom a trustee or administrator has been cited to settlement." In Matthews v. McDade, 72 Ala. 377, 388: "Twenty years is a period of time beyond which the courts are indisposed to permit past human transactions to be disturbed by judicial investigation." McArthur v. Carrie, supra; Garrett v. Garrett, supra; Baker v. Prewitt, 64 Ala. 551; Street v. Watts, 202 Ala. 622, 81 So. 564; Long v. Parmer, 81 Ala. 384, 1 So. 900; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732; Wilson v. Holt, 83 Ala. 528, 3 So. 321, 3 Am.St.Rep. 768; Alabama C. & C. Co. v. Gulf C. & C. Co., 171 Ala. 544, 54 So. 685; Scott v. Scott, 202 Ala. 244, 80 So. 82. Again it is said in Snodgrass v. Shodgrass, 176 Ala. 276, 280, 58 So. 201, 202, that "the consensus of opinion in the present day is that such presumption is conclusive," and quoting from an earlier case, "the presumption rests not only on the want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more of cruelty than of justice in them, that it conduces to peace of society and the happiness of families, 'and relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible.' " Harrison v. Heflin, 54 Ala. 552, 563, 564; Greenlees v. Greenlees, 62 Ala. 330; Semple v. Glenn, 91 Ala. 245, 260, 261, 6 So. 46, 9 So. 265, 24 Am.St.Rep. 894; Roach v. Cox, 160 Ala. 425, 49 So. 578, 135 Am.St.Rep. 107.

The rule now creates a conclusive bar, Roach v. Cox, supra; Oxford v. Estes, 229 Ala. 606, 158 So. 534, and is not affected by the circumstances of the situation, that is to say, whether truth and justice are thereby obscured, or by the death of parties or destruction of testimony, and conduct based upon the apparent situation, or the age, state of mind, or status of responsibility. These are circumstances which are considered in respect to laches but not prescription. Oxford v. Estes, supra; Courson v. Tollison, 226 Ala. 530, 147 So. 635; Ashurst v. Peck, 101 Ala. 499, 14 So. 541.

But such circumstances only give a reason for the adoption of the twenty-year period of prescription, and are not necessary to exist that its operation shall be complete. McCartney v. Bone, 40 Ala. 533; Patterson v. Weaver, 216 Ala. 686, 114 So. 301; Ashurst v. Peck, 101 Ala. 499, page 509, 14 So. 541; 21 Corpus Juris 212. It is not dependent upon statute, though it is there recognized. Section 8960, Code.

This being in the nature of a bill of review, so far as it charges fraud in procuring the decree, the ordinary statute of limitations is three years, by analogy to section 6608, Code, as limited by the one year statute, section 8966, Code. Nichols v. Dill, 222 Ala. 455, 132 So. 900; Manegold v. Beavan, 189 Ala. 241, 66 So. 448; Gordon v. Ross, 63 Ala. 363.

But no disability shall extend the period beyond twenty years. Oxford v. Estes, supra; Greenlees v. Greenlees, supra, 62 Ala. 330, page 333; Harrison v. Heflin, supra, 54 Ala. 552, page 563.

But it is urged that section 8966, Code, does away with the doctrine of prescription entirely as against insane persons who remain throughout that period. That section has continued in the Code since we have had one. Throughout all the years of this state's history, it has not been suggested in the opinions of this court, so far as we know, that the doctrine was thereby destroyed as to those who remained insane throughout that period. Prescription is not statutory, but a salutary principle of equitable origin, whose purpose has not been questioned by judicial construction, nor changed by statute. And we have consistently adhered to the idea that it operates alike on all, regardless of the status or condition of the parties. It is broader than the statute of limitations. Patterson v. Weaver, 216 Ala. 686, 114 So. 301, and not affected by it.

So that on this question, it is immaterial that complainant has been all the time insane, and not subject to the statute of...