Williams v. Williams, 1 Div. 484

Decision Date30 August 1954
Docket Number1 Div. 484
Citation74 So.2d 582,261 Ala. 328
PartiesThomas James WILLIAMS v. Naomi B. WILLIAMS.
CourtAlabama Supreme Court

Holberg, Tully & Aldridge, Mitchell G. Lattof, Mobile, for appellant.

V. R. Jansen, Mobile, for appellee.

CLAYTON, Justice.

This is an appeal by Thomas J. Williams, who for convenience will be referred to herein as the husband, from a decree of the Circuit Court of Mobile County, in equity, whereby certain real and personal property was awarded to Naomi Williams, who will be referred to as the wife.

The original bill filed by the wife against the husband prayed for an accounting from the husband for the alleged sale of certain cattle and pecans during the period from February 14, 1944 to August 25, 1949, the day the bill was filed, and following such accounting for a division between the husband and wife of the remaining cattle, in accordance with the result of the accounting, so as to balance accounts between them.

The wife's claim of right to relief was based upon two contracts between the parties dated February 2, 1944 and February 14, 1944, and a decree of the Circuit Court of Mobile County, in Equity, dated February 14, 1944.

The husband filed an answer and cross bill, in which he denied any debt due the wife by account or otherwise, and averred that the intention of the parties in making said contracts was to provide continuing maintenance and support for the wife and children following the decree of divorce which was expected to be and was obtained immediately after execution of the contract of February 14, 1944; that the parties subsequently were remarried on July 18, 1944, and resumed cohabitation as man and wife, and continued such from said date until October 2, 1949, when the wife summarily ejected the husband from the family home and willfully abandoned him; that both husband and wife affirmatively or tacitly agreed, understood and intended that said contracts and decree were abrogated by the remarriage and resumption of cohabitation; that the herd of cattle was owned and managed as his own, with full knowledge and consent of the wife and that he is the sole owner; that he is the sole owner of the tractors, trucks, automobile, farm machinery, etc.; that of the 1395 acres of land and the family home in Grand Bay, record title to all of which is now in the wife, he claimed at least an undivided one-half interest in 600 acres because the entire purchase price of it and other lands was paid from his own personal funds derived from operation of his farms, and he claimed an undivided one-half interest in the family home because he paid one-half the cost of purchase and development, all under such circumstances as to justify the court in making a decree in keeping with his claim; that title to lands purchased was put in the wife's name because of litigation in which the husband was involved at the time.

A brief delineation of events leading to this litigation may be stated as follows: In July 1918, Thomas J. Williams, an enlisted man in the United States Navy, married Naomi Berthaut, the daughter of a well-to-do owner and manager of a ship building and ship repair business at Algiers, Louisiana. The wife's father was not pleased with his daughter's marriage and did not visit nor correspond with her for some years. Following the husband's discharge from the Navy, he was given vocational training by the Veterans' Administration at Pascagoula, Mississippi, where the couple bought a home for $500, with money provided by the wife. In 1922, they sold the home in Pascagoula and applied the proceeds of the sale on the purchase price of 80 acres of land in Mobile County, Alabama, near Grand Bay, upon which they built a home. Both husband and wife worked in the fields and their income from farming, together with the husband's compensation as a disabled veteran, constituted all their income until 1927. The wife and her father became reconciled in October, 1927, at which time he gave her a check for $1,000. Subsequently, he gave her other substantial checks, including one for $2,500 in March, 1929, which paid most of the purchase price of the home in Grand Bay, after which time he paid the wages of a maid for his daughter and bought groceries, clothes for the children, and other supplies on the occasions of his frequent visits and helped them financially until his death in 1939.

Beginning about 1929 or 1930, the Williams began buying tax titles to land in the vicinity of Grand Bay and continued to buy lands by quit-claim and otherwise until at the institution of the present suit a total of about 1,395 acres and the home in Grand Bay had been acquired; and they engaged in cattle, pecan and farming operations. Mrs. Williams' father died in 1939 leaving her a considerable estate. Through the years until 1944, the husband and wife used a joint bank account, into which was deposited income from farm operations, as well as money received by the wife from her father and from his estate. All lands bought were paid for by check on the joint account until 1944, and thereafter out of the personal account of Mrs. Williams, which was a part of her separate estate.

The list of conveyances in the transcript entitled 'Realty Acquisition Record,' does not contain the names of the grantees in any instances. We cannot know with exactness in every case whether the grantee of the lands, when first bought by the Williams, was the husband or the wife, or the husband and wife jointly. But this is not a matter that is essential for our decision. The husband was record owner of one-half undivided interest in 240 acres in section 19, immediately before execution of the contract of February 14, 1944, and the Equity decree of the same date, and the wife was record owner of the rest of the lands at that time. The husband executed a statutory warranty deed conveying to the wife the 240 acres in section 19 on February 14, 1944.

This marriage proved typical of those which under adversity border on the sublime in fortitude, but cannot weather the storm of luxury.

In December 1943, the husband asked his wife for a divorce. The wife gave him $4,000 in cash, executed two contracts fixing their respective rights in real and personal property and submitted same, together with testimony relative to the infidelity of the husband, to the Chancellor for a decree.

Perhaps a clearer understanding of the situation of the parties at the beginning of the instant suit can be gained by setting out herein verbatim the two contracts and the decree of February 14, 1944. So, here they are:

Contract of February 2, 1944.

'State of Alabama

County of Mobile

'Know All Men By These Presents that whereas an action for divorce is pending in the Circuit Court of Mobile County, Alabama, in Chancery, in which Naomi Berthaut Williams, hereinafter called the wife, is Complainant, and Thomas James Williams, hereinafter called the husband, is Respondent, and

'Whereas, the said parties deem it to the best interest, welfare and benefit of themselves and their children, who are hereinafter named, to effect a settlement of their respective rights and property rights,

'Now Therefore, in consideration of the premises and the mutual covenants and agreements herein contained, and in further consideration of the sum of One ($1.00) Dollar in hand paid, each to the other, it is hereby agreed as follows:

'1. The wife shall have the care, custody and control of the children born to the parties, whose names and respective ages are as follows:

'Lemoine Williams, twenty years of age; Wincen Williams, seventeen years of age; Edgar Williams, fifteen years of age; and Sewell Williams, eleven years of age.

'The said husband shall have the right to see the said children at any reasonable time of day, but the wife shall have the right to reside with the said minors in the City of New Orleans, Louisiana in her exclusive discretion.

'2. Of the lands owned by the wife in Mobile County, Alabama, the said husband shall have the privilege of using the property located in Sections 7, 8, 9 and 18 all in Township 7 South, Range 3 West, in Mobile County, Alabama, provided however, that the said use of the husband is permissive at the option of the wife, and is subject to termination by her at will. In the event that the said husband shall use the said property for pasturage, he shall pay all State and County ad valorem taxes during the time that he occupies the same. In the event the said husband shall occupy the said property during the period of the years when the pecan crop is ready for gathering, the wife shall permit him to gather or to have gathered the pecan crop yielded by the pecan orchard on said property, and shall pay to him for his services and efforts fifty (50%) percent of the income derived from the sale of said pecan crop. The occupancy of said property by the said husband shall confer no rights upon him with respect to the timber, and he shall not cut or permit any of the timber on the said property to be cut.

'3. It is hereby agreed that the said husband and wife shall each have a fifty (50%) percent interest in the herd of cattle which is presently located on the said property, provided however, that for and in consideration of the sum of One ($1.00) Dollar and the use of the lands of the wife for pasturage of all of the said herd of cattle, the said husband does hereby agree to make a last Will and testament under the terms of which his interest in the herd of cattle shall be bequeathed on his death to his four children, named hereinabove, if any of said herd of cattle be unsold at the time of the death of the husband. No sale of the cattle shall be made without the mutual consent of said husband and wife, and a full accounting shall be made to the wife in connection with any transaction relating to the herd of cattle.

'4. In the event of a decree of divorce being rendered in said cause in favor of Naomi Berthaut Williams, this agreement...

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