Woodruff v. Smith

• Decision Date: 23 June 1900
• Parties: WOODRUFF ET AL. v. SMITH.
• Court: Alabama Supreme Court

28 So. 736

127 Ala. 65

WOODRUFF ET AL. v. SMITH.

Supreme Court of Alabama

June 23, 1900

Appeal from chancery court, Perry county; W. H. Tayloe, Chancellor.

Bill by James Q. Smith, Jr., against S.E. Woodruff and others. From a decree in favor of complainant, defendants appeal. Affirmed.

The day before his marriage, and in consideration thereof, James Q Smith conveyed to his betrothed, Marie L. Fair, 640 acres of land in Perry county, known as "Grove Cottage Plantation," "for the maintenance and support of the party of the second part, and any child or children she may have of said marriage." The marriage was solemnized. Mrs. Smith possessed herself of all of said land. A child was born, James Q. Smith, Jr., and then, in 1881, the father (grantor) died. This child is sometimes called "Seti." The widow, Marie L. F. Smith, and the son James Q. Smith, Jr., continued to reside in the dwelling on said tract till about December, 1892. In 1882 the widow married one William J. Smith, who thereafter resided with her, and her son, James Q. Smith, Jr., on said Grove Cottage plantation. On February 24, 1885, Marie L. F. Smith, and her then husband, William J. Smith, mortgaged all of said land to Woodruff & North, and on 9th March, 1886, in consideration of the release of 200 acres of said land, on which were the dwelling, walls, and outhouses, and of $3,670 which they owed Woodruff & North, Marie L. Smith and husband conveyed to E W. North, for Woodruff & North, 440 acres of said tract. At the same time, and as a part of the same transaction with the making and delivery of the conveyance to North of the 440 acres, said Marie L. Smith and her husband executed and delivered to North an instrument in writing, reciting that said Marie L. Smith and husband had this day conveyed to North 440 acres of land for $3,670, which was paid, as will be seen by reference to a certain deed of date March 5, 1886 "and whereas, said lands are a certain tract of land heretofore conveyed to said Marie L. Smith, by name of Marie L. Fair, in trust for the support and maintenance of herself and any child born of her by James Q. Smith, the grantor; and whereas, after her marriage with James Q. Smith she, the said Marie L., had a child, now living, and known by the name of Seti Smith, an infant; and whereas, said child has been maintained and supported out of the income arising from said property; and whereas, Marie L. and Wm. J. Smith have retained two hundred acres of the land so conveyed by said James Q. Smith, which is amply sufficient for the support education, and maintenance of said child, and for other purposes in said deed mentioned: Now, the said Marie L. Smith and Wm. L. Smith, her husband, hereby covenant and agree with said Edwin W. North that they will faithfully apply the said two hundred acres of land, and the rents and profits thereof, or so much as may be necessary, to the education, support, and maintenance and benefit of said child, in such manner as will release and discharge the land conveyed to said North from all liability to the trusts in the said deed of James Q. Smith, to the best and utmost of their ability, and to every extent practicable." This instrument was duly acknowledged, attested by two witnesses, and filed for record on the same day as the conveyance referred to therein. North took possession of the 440 acres of land for Woodruff & North, and they, through tenants, held possession till the receiver in this cause took them, about the 1st of January, 1897. Mrs. Smith and her son, James Q. Smith, Jr., called Seti in the covenant above quoted, lived on said 200 acres, and retained and appropriated the proceeds of said land to the support of said son, till December, 1892, when she removed to Montgomery, where she supported and maintained her said son up to October, 1896. In April, 1888, Marie L. and William J. Smith conveyed the 200 acres to Thomas Q. Smith, and on the 13th of July, 1888, he mortgaged this land to the Canadian & American Mortgage & Trust Company, and on the 24th November, 1891, again mortgaged the land to A. Kolsky. In February, 1893, the Canadian & American Mortgage & Trust Company sold and transferred its debt and mortgage to L. W. Turpin, and afterwards filed in this cause its disclaimer. Kolsky foreclosed his mortgage on January 7, 1893, and became the purchaser of the land, and Turpin bought said land from Kolsky, and took possession in January, 1893, and held this 200 acres till the receiver took it from him. On December 31, 1894, J. Q. Smith, Jr., filed his bill against S.E. Woodruff individually and as executrix of the will of N. Woodruff, deceased; Mrs. L. B. North, individually and as executrix of the will of E. W. North; and Marie L. Smith and others. On February 21, 1895, J. Q. Smith, Jr., filed his bill against L. W. Turpin, Marie L. Smith, Thomas Q. Smith, A. Kolsky, and the Canadian & American Mortgage & Trust Company. The bill against Mrs. Woodruff and others, after averring the facts substantially as set forth above, further averred the execution of a mortgage by Marie L. and William J. Smith to Woodruff & North; an absolute conveyance by Mrs. Smith and her husband to E. W. North, on March 9, 1896; and further averred the death of N. Woodruff, the probate of the will, and the qualification of his widow, S.E. Woodruff, as executrix under said will. The bill against Turpin and others, after setting out the facts as stated above, also averred the execution of the conveyance by Marie L. and William J. Smith to Thomas Q. Smith; that the latter executed a mortgage to the Canadian & American Mortgage & Trust Company; that said mortgage was usurious, and was made by a foreign corporation without having complied with the statutes of Alabama. The bill further averred the execution of the mortgage to Kolsky, the foreclosure thereof by sale under the power contained in the mortgage, the purchase at said foreclosure sale by Kolsky of the lands sold, and a conveyance of said lands so purchased from Kolsky to Turpin, and that Turpin was in possession of the 200 acres so purchased, and had received the rents in the years 1893 and 1894, which were $400 annually. The prayers of the two bills were substantially the same, and prayed that all the conveyances of said land included in the antenuptial contract, or any part thereof, which was made after the death of James Q. Smith, be set aside and declared null and void; that the rights and equities of all parties to these suits in the said lands, and in the rents thereof, may be settled and determined by the court; that an accounting of the rents be taken, and the complainant be decreed to have such part thereof as he may be rightfully and equitably entitled to. There was also a prayer for general relief in each of the bills. Mrs. Woodruff answered the bill, and converted her answer into a cross bill, which the chancellor dismissed. In her answer she shows that the 440 acres of land are held by the surviving partner of late firm of Woodruff & North. Turpin demurred to the bill against him, the demurrer was sustained, the bill dismissed, appeal taken from this decree, and it was reversed in the supreme court, which construed the antenuptial contract and conveyance. See Smith v. Turpin, 109 Ala. 689, 19 So. 914. After this reversal, both cases were put at issue, and L. W. Turpin then filed a cross bill, and set up the pendency of both bills by Smith, Jr., against him, and against Woodruff & North and others, and made all the parties defendant to said bill except himself parties defendant to his cross bill, and prayed that said causes be consolidated.

On November 3, 1896, a decree was entered in all three of these causes, which was in words and figures as follows "These three causes come on to be heard together, and were submitted together, by consent of all the parties, on the pleadings in all the cases, and on the notes of testimony made by the register of this court, and on the decree pro confesso for final decree. And now, the court, having fully considered all the matters submitted, is of the opinion that the complainant, James Q. Smith, Jr., is entitled to the relief prayed in both of his bills of complaint, and it is ordered and adjudged and decreed as follows: (1) That the complainant, James Q. Smith, Jr., a minor, under the deed of antenuptial marriage settlement which was executed by James Q. Smith, Sr., to Marie L. Fair (the father and mother of complainant), and as the only child of said James Q. Smith and his wife, Marie L. Smith, is entitled to an annual sum of money for each and every year, from the 5th day of April, 1888, when the said Marie L. Smith sold and conveyed the last 200 acres of said Grove Cottage plantation to Thomas Q. Smith until the 7th day of January, 1896, sufficient for the maintenance and support of the complainant, including education, in each one of said years, according to the degree and condition of said complainant and provision made for his benefit by his father in said antenuptial deed, of which Exhibit A to complainant's bill is a copy, together with interest on each of said annual sums, out of the rents, issues, and profits of the said Grove Cottage plantation, described in said Exhibit A, and the payment of said annual sums and interest is made a charge on said Grove Cottage plantation. And the said James Q. Smith, complainant, is also entitled to a sum of money annually, for each and every year during the lifetime of his mother, said Marie, so long as the complainant lives, sufficient for his maintenance and support, including education, in each one of said years, according to the degree and condition of said complainant and the provision made for his benefit in said antenuptial deed by his father, of which Exhibit A to the complainant...