Williams v. Kitchens, 7 Div. 204

• Court: Supreme Court of Alabama
• Writing for the Court: PER CURIAM; LIVINGSTON; GOODWYN; GOODWYN; In the Underhill Case, supra, this court, speaking through Brickell
• Citation: 74 So.2d 457,261 Ala. 340
• Docket Number: 7 Div. 204
• Decision Date: 30 August 1954
• Parties: Mamie R. WILLIAMS v. Minnie Lee KITCHENS, et al.

Page 457

74 So.2d 457 261 Ala. 340 Mamie R. WILLIAMS
v.
Minnie Lee KITCHENS, et al. 7 Div. 204. Supreme Court of Alabama. Aug. 30, 1954.

[261 Ala. 341]

Page 458

Chas. Douglass, Anniston, for appellant.

Young & Young, Anniston, for appellees.

[261 Ala. 342] PER CURIAM.

This appeal is from a decree sustaining demurrer to a bill in equity. In essence, the bill is one to have either a resulting or a constructive trust in real estate decreed in favor of complainant.

The material averments of the bill, as last amended, are contained in the following statement taken from appellant's brief (the bracketed portions being added by us):

'Mrs. Kitchens [respondent-appellee] and Mrs. Williams [complainant-appellant] formerly lived in Georgia. There, this complainant was married to Mr. Echols, from whom she was later divorced. Of that marriage there was one child, Rufus C. Echols [respondent-appellee]. Later [February 5, 1923], complainant was married to Mr. Williams. Mrs. Kitchens asked that Rufus C. Echols be allowed to live with her, he then being about five years old. Complainant consented. Subsequent to this, Mrs. Kitchens moved to Anniston, having in the meantime become the wife of S. B. Tollison. In the early part of 1926, Mrs. Kitchens, then Tollison, and S. B. Tollison, with Rufus C. Echols, were living in the old office of a manufacturing plant, poorly equipped for a residence, and hard to reach. She was hard pressed. While so located, she became seriously ill, and Mrs. Williams, a daughter, came over to see her. Mrs. Williams was at that time in good financial condition. On that visit, she saw the needs of her mother, and was anxious to see her in better quarters. Complainant stated to her mother in substance that she would like to purchase a residence in Anniston for the mother to use, during her lifetime, the property to then pass to complainant. This met the hearty approval of respondent Kitchens, she agreeing that, if complainant furnished the money, she, Kitchens, would have deed made to herself for life, with provision for the remainder estate to go to complainant. Complainant and others looked around for a suitable residence, and found one located at 1800 West 11th Street, Anniston, Alabama, owned by Mr. Boozer, the price being $1800.00 When complainant returned to Georgia, she mailed check for the money to Mrs. Kitchens, leaving the entire matter to be handled by her. Mr. Kitchens breached the agreement in that, instead of having the deed made in accordance with the agreement, she had it made to herself as M. L. Tollison, and to S. B. Tollison. [Said deed being dated February

Page 459

20, 1926, and of record in Book 288, page 458, Probate Office, Calhoun County, Alabama.] Right after the place was purchased, Mrs. Kitchens, then Tollison, her husband, S. B. Tollison, and Rufus C. Echols moved in the house, and Mrs. Kitchens and Rufus C. Echols have lived in that residence since that time, and are occupying it now, it having a present value of $5000.00.

'The bill shows that complainant loved her mother, had the utmost confidence in her, believed her mother would carry out the agreement, and, under this belief, and in reliance upon the promise, she turned the execution of the purchase over to her mother, and did not follow with check to see if the agreement had been complied with.

'The bill shows that complainant moved from Carrolton, Georgia to Anniston[261 Ala. 343] in or about 1930, and from then on, was frequently in company of her mother and her son, Rufus C. Echols, but complainant was not advised of the kind of deed which was made until July 1945. The bill shows that on this date, complainant and respondent Kitchens had a conversation concerning this property in which Mrs. Kitchens sidetracked the issue by telling Mrs. Williams that she, complainant, was provided for in a will. Complainant got access to the will, and found from it that the property was devised to Rufus C. Echols for his life; that complainant stated to her mother in substance that, under the agreement, she was entitled to a remainder interest in this property. Respondent Kitchens showed embarrassment, and admitted that the remainder estate should have been conveyed to complainant, and agreed to convey it to her, but said she could not do anything about it until she got Tollison out of the picture. The bill shows that respondent Kitchens got divorce from Tollison on July 6, 1946, she resuming her former name of Kitchens, and on July 5, 1946, Tollison quitclaimed his interest in said property to respondent Kitchens, the property being described in paragraph 6 of amendment F. The bill also shows that subsequent to that time, in all conversations complainant had with her mother on this subject, respondent Kitchens recognized complainant's right to the remainder estate, and from time to time promised that she would make to complainant a deed to the remainder estate.

'It is averred in said bill that under deed of August 3, 1949, Minnie Lee Kitchens conveyed this property to Rufus C. Echols, it being recorded in Book 646, page 49, Probate Office, Calhoun County. It is shown in said amendment F that, sometime before this transfer, complainant had discussions with Rufus C. Echols, advised him in substance of her remainder interest in this property, and of her mother's promise to convey this remainder estate to complainant. Amendment F shows that on or about June 12, 1952, complainant was passing the residence involved in this suit, and observed some improvements, which aroused her suspicion; that she promptly went to the office of the probate court, and got someone there to see if any conveyance had been made. In this way, on June 12, 1952, she learned about this deed from her mother to Rufus C. Echols. It is shown that she then got busy, put pressure on her son to right this wrong. She avers in amendment F that he offered to pay her $1300.00, $700.00 cash, and the balance at a later date. She avers that she agreed to quitclaim her interest to him for that sum if he would sign an agreement to provide for respondent Kitchens and furnish her a place to live for the rest of her life. She avers that he refused to do this, and then this suit was filed.

'In paragraph 17 of amendment F the bill avers that Rufus C. Echols acquired this deed through undue influence, or, in the alternative, through

Page 460

connivance between him and his grandmother, and in the bill it is shown that he was the dominant party.

'It is also shown in amendment F that for sometime prior and up to September 30, 1952, respondent Kitchens received relief from the Calhoun County Welfare Department; that, following the passage of the act for support from relatives, the welfare department sent notice to the relatives of Minnie Lee Kitchens; when some of the relatives failed to respond, the relief was cut off on said date. During that time, Mrs. Kitchens was living in the residence she had deeded to Rufus C. Echols.

'Amendment F charges fraud, and asks for specific performance of the contract. Amendment G asks, in the alternative, for a decree establishing a resulting trust in favor of complainant; that the trust be annulled and the remainder estate vested in complainant. Amendment H, in the alternative, asks, [261 Ala. 344] if she is not entitled to relief under amendment F, nor under amendment G, that she have a judgment for that part of the $1800.00 covered by remainder interest in this property, with interest from that date to this date; asking that the court retain the case, establish a lien upon the property involved, and direct that it be sold for the payment of the indebtedness.'

The question presented is whether the bill sufficiently shows, against a demurrer to it, facts which overcome the effect of the long delay in filing it. As shown from the facts stated above, the right to sue in equity arose upon the execution of the deed February 20, 1926, in violation of the instructions to Mrs. Kitchens by complainant in respect to the manner of making the investment. This bill was originally filed July 9, 1952. That was of course more than twenty years after the claim arose.

In order to determine the question presented we must first ascertain the nature of the limitation applicable to such a claim. That is to say, whether it is controlled by the ten year statute of limitations, Title 7, § 20, Code--or by the equitable rule of prescription which is twenty years, or by laches also an equitable principle. It is to be noted that under the instructions to Mrs. Kitchens, the title of the lot was to be taken in her for her life, with remainder in complainant. So that the nature of complainant's equity is to enforce a constructive trust in her favor operative only in remainder after the death of Mrs. Kitchens, the life tenant. Hawkins v. Sanders, 260 Ala. 585, 72 So.2d 81(15). To grant the relief sought does not result in obtaining the present enjoyment of the property or any part of it or its possession in whole or in part. Complainant does not claim the right in equity to such present use of it or its present possession in any respect.

There is a theory advanced that it is barred by the ten year statute of limitations, for that it is in the nature of a suit for the recovery of land, its tenements or hereditaments, or the possession thereof. But we have many cases which refute the theory, and which we will undertake to analyze.

'Until the termination of the life estate the remainderman had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be any adverse possession as to him for like reason. There can be no ouster of a remainderman, who has neither the possession nor right of possession, during life of the life tenant.'--Bolen v. Hoven, 143 Ala. 652, 39...