Wilkinson v. Wilkinson

• Decision Date: 05 February 1901
• Citation: 30 So. 578,129 Ala. 279
• Parties: WILKINSON ET AL. v. WILKINSON ET AL. [1]
• Court: Alabama Supreme Court

30 So. 578

129 Ala. 279

WILKINSON ET AL. v. WILKINSON ET AL. ^[1]

Supreme Court of Alabama

February 5, 1901

Appeal from chancery court, Butler county; W. L. Parks, Chancellor.

Bill by W. W. Wilkinson, by his next friend, against H. A. Wilkinson and others. On the death of complainant the bill was revived in the names of Charles Wilkinson and others. From a decree overruling the motion to dismiss bill and demurrers thereto defendants appeal. Reversed.

It alleged that said W. W. Wilkinson was a non compos mentis and had become insane during 1880, and had been conveyed to and detained at the asylum for a long period, and was never subsequently of sound mind; but there is no allegation that he was never adjudged insane. It is further alleged that in July, 1885, H. Z. Wilkinson, a son of W. W. Wilkinson, by arts and misrepresentations induced said W. W. Wilkinson to convey his entire estate to said H. Z. Wilkinson, and that said conveyance was procured while the grantor was insane and incapable of transacting business. A copy of the conveyance is attached as an exhibit to the bill, and it shows that the deed was in proper form, properly acknowledged, and duly recorded July 10, 1885, the day after its execution, and appears to have been executed by W. W Wilkinson and wife, and bears no evidence that it was executed by other than sane persons. The bill further alleges that H. Z. Wilkinson pretended to convey by mortgage, to one Moses Weil, the property conveyed to him by W. W. Wilkinson. A copy of this mortgage is exhibited to the bill, and the consideration mentioned therein is an indebtedness on the part of said H. Z. Wilkinson to Moses Weil in the sum of $24,034.47, evidenced by five promissory notes, payable in 1889, 1890, 1891, 1892, and 1893, respectively, and the mortgage and notes bear date September 21, 1888. This mortgage was duly acknowledged by H. Z. Wilkinson and wife, and duly recorded September 22, 1888. It is further alleged that Moses Weil died February 26, 1892, and that his executors, Harriet Weil, Abraham Weil, and Emanual Lehman, are attempting to dispose of the property; that said conveyance and mortgage are void; that irreparable injury will be sustained if Weil's executors are not restrained from disposing of the property; that the houses, etc., on said property are rapidly decaying for want of attention, and that trespassers are cutting valuable timber. The bill prays for a receiver to take charge of the property, collect rents, etc., and that the conveyance and mortgage be declared void. On July 1, 1896, the bill was amended by showing the death of W. W. Wilkinson, and reviving in the name of all his heirs except H. Z. Wilkinson, viz. J. D. Barrow, E. W. McCall, Charles Wilkinson, and S. V. Wilkinson. The respondents moved to dismiss the bill for the want of equity, and also demurred to the bill upon the grounds that the bill shows no case entitling the complainant to the relief prayed for, and that there is a plain and adequate remedy at law. On the submission of the cause the chancellor rendered a decree overruling both the motion to dismiss the bill and the demurrers.

C. E. Hamilton and Watts, Troy & Caffey, for appellants.

A. A. Wiley and Stallings & Wilkinson, for appellees.

TYSON J.

The bill seeks to have certain conveyances declared void and canceled. The material allegations of the bill upon which this relief is predicated may be stated to be...