Williams v. Dent

• Citation: 233 Ala. 109,170 So. 202
• Decision Date: 15 October 1936
• Docket Number: 4 Div. 863
• Parties: WILLIAMS et al. v. DENT.
• Court: Supreme Court of Alabama

170 So. 202

233 Ala. 109

WILLIAMS et al. v. DENT.

4 Div. 863

Supreme Court of Alabama

October 15, 1936

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Bill in equity by Helen Dent Williams against George H. Dent, Jr. and Louie H. Dent, individually and as executors of the estate of Helen A. Dent, deceased, and cross-bill by Louie H Dent against George H. Dent, Jr. From a decree for respondent (and cross-respondent), complainant and cross-complainant appeal.

Reversed rendered and remanded.

Chauncey Sparks, of Eufaula, and Coleman, Spain, Stewart & Davies, of Birmingham, for appellants.

Crews Johnston, of Clayton, for appellee.

GARDNER Justice.

Complainant, Helen Dent Williams, cross-complainant, Louie Dent, and defendant, George H. Dent, Jr., are the surviving children of Helen A. Dent, who died, at the age of 85 years, on December 26, 1932, leaving a will, under the terms of which, if so owned by her, it is conceded these three would share equally as tenants in common in testatrix' undivided one-half interest in a certain storehouse and lot in the city of Eufaula, known as the Weedon & Dent Drug Store.

Complainant to the original bill, and her brother, cross-complainant, Louie Dent, seek identical relief--sale of the said property for division and for an accounting against their brother George H. Dent, the defendant; and as to the matter of pleading, the designation "complainant" will suffice for them both.

The pivotal question in the case is one of fact, squarely presented by the bill as last amended, and as the result of this appeal turns upon a determination of this issue of fact, all other phases of the bill may be left to one side without discussion.

This question of fact relates to the matter of delivery of a deed admittedly signed and acknowledged by defendant George H. Dent, Jr., on August 30, 1929, and purporting to convey to his mother, Helen A. Dent, an one-half undivided interest in the above-mentioned storehouse known as the Weedon & Dent Drug Store in Eufaula.

Defendant insists there was no delivery of this deed, and the learned chancellor accepted his theory of the proof, submitted only on depositions, and dismissed the bill. Since the passage of the act of 1915 (Gen.Acts 1915, p. 594; Sec. 10336 Michie's Code), it has not been the policy of this court to enter into a detailed discussion of the evidence ( Caples v. Young, 206 Ala. 282, 89 So. 460), nor would it here serve any useful purpose. We are content, therefore, with a brief outline of the proof in connection with a preliminary reference to some of the legal principles applicable thereto.

First as to the proof. The one half interest in the store building involved was given Helen A. Dent by her father. The other half interest was owned by the Weedon heirs, who desired a sale for division, and to avoid a court proceeding it was agreed by all parties the property be offered for sale at public outcry. Of course Helen A. Dent was interested in seeing that the property brought a fair price. Her son George, who had lived alone with her at the home place in Eufaula the last five years of her life, became a bidder at the sale for the protection of his mother's interest, pursuant to an understanding between them, as testified to by defendant himself, and as expressed by him in a letter to his brother Louie bearing date July 24, 1929, wherein, among other expressions, are the following: "The drug store *** will be sold on August 5th, and very little cost. *** I have the money and will protect mama's interest up to a certain amount. *** and if I buy it in for mama the same will have to be done as mama has no deed to it, while we all know the store is hers, one-half." Had the price gone as high as $7,000, defendant says he would have let it be sold to others, but his bid of $6,500 was the last and highest, and he became the purchaser for that sum. All owners, including his mother, joined on August 14, 1929, in a deed to defendant, which deed was duly recorded August 21, thereafter. The Weedon heirs were duly and promptly paid their one-half of the purchase price of $3,250. Defendant's mother, Helen A. Dent, was paid nothing. He insists he handed her a check for her share of the purchase price, but that she refused to accept it, giving as the reason defendant had not received from his father's estate as much as the other children--that all she wanted was the rents from the property.

Admittedly, defendant did receive his proportionate share of the proceeds of the sale of his father's estate, and said estate was under no obligation to him whatever. The reference, therefore, was clearly to the matter of advancements which were the subject of litigation reaching this court (Dent v. Foy, 210 Ala. 475, 98 So. 390),

and not, of course, a matter to be here reopened.

While the deed by all the joint owners to defendant bears date August 14, 1929, its delivery was evidently on August 21st, which is the date of the last acknowledgment and of its recordation. Within a few days thereafter, and on August 30, 1929, defendant signed and acknowledged before a notary, who was also his attorney, a deed conveying to his mother an one-half undivided interest in this property. Defendant in this connection testifies: "I went to see *** my lawyer, and I told him she refused to take it and I wanted to have something to show for it, and he drew that up, and she said, 'I' don't want it. You got nothing out of your father's estate, and I want you to have this drug store.' "

While defendant states his mother, the grantee therein named, never had possession of the deed, yet we gather from his further testimony the witness intended to say his mother never had continuous possession. As later, in answer to the question, "You handed it to her, didn't you?" he answered, "Yes sir." "She had her hands on it, didn't she?" Answer: "I reckon she looked at it, just like you looked at this check and handed it back." And at another place, speaking of the deed, defendant said: "She wanted to give this back to me, she wouldn't take it, and I asked her, I said, I better go and have this recorded for you, and she said 'no, I give it back to you, just give me the rents from it during my life time, that's all I want: you got less out of your father's estate than any of the children, and I want you to have this; just give me the rents.' " Defendant insists that she got the rents and more which he gave her out of his own funds.

It is of course quite clear that all of this evidence of defendant as to statements by and transactions with his mother come within the inhibitions of section 7721, Code 1923, and were therefore inadmissible. McDonald v. Harris, 131 Ala. 359, 31 So. 548. But as we read the record, the answers of defendant to interrogatories propounded by complainant relating to these very matters were responsive thereto and offered in evidence by complainant, and were in fact proof called for by the opposite party within the exception of the statute. It is therefore properly here for consideration.

This deed by defendant to his mother was never recorded, but was kept by him in his safety deposit box in the bank at Montgomery with the other deed, and in the same box defendant kept his mother's will as she had requested. He also had in his keeping her bank book together with those belonging to himself, but these were not in the deposit box.

Shortly after the purchase, a joint rent account was opened at the bank in Eufaula in the name of H.A. and George H. Dent, Jr., the first entry being on October 15, 1929. Admittedly this was the joint account of defendant and his mother, and this rent account was the only joint account they had. Checks drawn by defendant alone were honored, and the proof is defendant transacted all the business of the account. The mother neither made deposits nor did she draw any checks on the account. The last entry was on August 14, 1934, and the last deposit December 6, 1933. Defendant states that the money on this account went for taxes and repairs and cash to his mother, and she received the benefit of the entire account and more besides, which he gave her. Defendant's mother had other property and she acquired some cash from some capital sales.

While her health was fair for one of her age, yet a lameness prevented her from going about to any great extent, and unquestionably defendant, a man of mature years and the only one of her children living with her, attended to some of her business transactions. And the proof is persuasive that Helen A. Dent consulted defendant as to a change in her will when the codicil thereto was written, after the death of her son Warren--all of which more clearly appears from a letter written by defendant to his brother Louie, bearing date February 12, 1929. All of which is here of little importance, further than to show the relation existing and confidence bestowed.

On February 19, 1930, in a letter to his brother Louie, defendant, speaking of his mother, said: "She has gone through with what she had. I had to pay the taxes or part of them for her. She owes me for fixing the roof and repairs on Dg. too. Glad to do this for her." The abbreviation "Dg." in the letter was interpreted by the brother to refer to the drug store, and this interpretation remained unchallenged.

Complainant and her bother Louie each testify to declarations of their mother indicating her continued...