Opinion
7 Div. 963.
October 20, 1919. Rehearing Denied December 24, 1919.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Forney Johnston and W. R. Cocke, both of Birmingham, and Embry Embry, of Pell City, for appellants.
The motion to dismiss the appeal should not be granted. 201 Ala. 21, 75 So. 145; 175 Ala. 381, 57 So. 962, Ann. Cas. 1914D, 81; 196 Ala. 127, 72 So. 25; 196 Ala. 627, 72 So. 171; section 2884, Code 1907, as amended Acts 1911, p. 589. The remedy at law is adequate. Wilkinson v. Wilkinson, 129 Ala. 279, 30 So. 578; Boddie v. Bush, 136 Ala. 560, 33 So. 826; 131 Ala. 280, 31 So. 603; 185 Ala. 71, 64 So. 55; 180 Ala. 296, 60 So. 858. The bill was multifarious and contained a misjoinder of parties. 181 Ala. 163, 61 So. 302; 189 Ala. 241, 66 So. 448; 137 Ala. 532, 34 So. 609; 168 Ala. 398, 53 So. 260; 200 Ala. 70, 75 So. 398; 93 Ala. 273, 9 So. 379. The court was without jurisdiction to remove the cause. Sections 4345-4361, 4453-4457, Code 1907; 151 Ala. 194, 44 So. 62; 106 Ala. 404, 17 So. 620; 75 Ala. 495. The court was in error in finding appellee to be insane, within the meaning of section 3347, Code 1907, 36 Ala. 514; 28 Ala. 565; 201 Ala. 205, 77 So. 731. There must be an affirmative finding that Martin knew that appellee lacked mental capacity. 191 Ala. 142, 67 So. 992; 201 Ala. 28, 75 So. 150; 201 Ala. 293, 78 So. 69; 182 Ala. 97, 62 So. 36; 123 Ala. 439, 26 So. 290.
M. M. Victor H. Smith, of Pell City, for appellee.
It is now well settled that courts of equity have jurisdiction to set aside conveyances and do equity between the parties, where such conveyance is by a non compos mentis. Sections 3347-3348, Code 1907. The bill is not multifarious. 173 Ala. 142, 55 So. 781; 200 Ala. 187, 75 So. 935; 116 Ala. 494, 22 So. 863; 184 Ala. 227, 63 So. 159, 47 L.R.A. (N.S.) 543 n, Ann. Cas. 1915B, 672. No one except the misjoined party can object to the misjoinder. Sims Chancery Practice, 114; 12 Ala. 369. The suit was properly brought. 90 Ala. 458, 7 So. 830; section 3088, Code 1907. The bill was properly filed as a bill to remove administration. 147 Ala. 504, 41 So. 1010; 147 Ala. 554, 41 So. 784; 105 Ala. 464, 17 So. 89; 109 Ala. 490, 20 So. 40; Acts 1915, 738; 151 Ala. 194, 44 So. 62.
This is a bill, the primary purpose of which is to remove the administration of the estate of a person of unsound mind from the probate court of St. Clair county into the circuit court.
Before the statutes of 1915 (Laws 1915, p. 279), consolidating the chancery and law courts into the circuit courts, the bill would have been to remove the administration of the estate into the chancery court. Since these statutes, the removal, of course, must be into the circuit court.
The bill is filed by the next friend of the non compos mentis, and also seeks the removal of the guardian and the cancellation of a deed made by the non compos mentis to the respondent R. A. Martin. The guardian and Martin are the respondents to the bill.
There can be no doubt as to the jurisdiction of equity as for each of the purposes, or to award all the relief prayed or granted, if the bill contains appropriate and sufficient averments and is supported by sufficient proof. Bills for those purposes are not multifarious. Cox v. Johnson, 80 Ala. 22; Voltz v. Voltz, 75 Ala. 555; Noble v. Moses, 74 Ala. 604. The chancery court has the undoubted jurisdiction in certain cases to remove settlements of estates of decedents from probate to chancery court where the remedy or relief would be inadequate in the probate court, and the removal may be had by the parties interested in the settlement without the allegation of any special equity. Dickens v. Dickens, 154 Ala. 440, 45 So. 630; Greenhood v. Greenhood, 143 Ala. 442, 39 So. 299.
The probate court has jurisdiction of final settlement of guardianship and in the absence of special equity will retain jurisdiction to the exclusion of chancery; but, where there is special equity jurisdiction on account of the elastic powers of the latter court not possessed by the former, chancery will assume jurisdiction and remove the settlement from the probate court into chancery. Spidle v. Blakeney, 151 Ala. 194, 44 So. 62.
The hearing was had on pleadings and proof, and relief given practically as prayed. The averments of the bill were sufficient against any ground of demurrer interposed thereto, and, if these averments were sustained, the relief prayed and awarded was proper.
Appellant was in error in supposing that the main purpose of the bill was to annul the deed made by the non compos mentis. The main equity was a removal of the administration into the chancery court, and the removal of the guardian, and the cancellation of the deed was merely incidental. As before stated, the averments of the bill, and proof, were ample to justify the removal into the chancery court.
The case made by the bill and proof did not bring the case within the protection of section 3347 of the Code. The bill alleges, and the proof tended to show, that the grantee had notice of the mental unsoundness of the grantor when the deed was executed. While the evidence was not without adverse inferences as to the notice, yet the proof was nearly all taken ore tenus, and we are not willing to disturb the finding of the chancellor or judge on this subject. While it is possibly true there was no direct finding by the chancellor on this subject, the decree rendered necessitated such a finding, and we must presume such finding in the absence of anything to the contrary.
While there is no allegation of fraud in so many words, yet facts are alleged, which, if true, show that the administration and conveyance were a fraud in law if not in fact, against the non compos mentis. It is not necessary that there should have been alleged and proven a specific intent to defraud or cheat the non compos mentis; that is, that there should be actual, as distinguished from legal, fraud. If the facts averred were true, they showed a fraud in law, which is sufficient without any specific intent to defraud. There was no misjoinder of parties. It is alleged, and the proof shows, that the administration of the estate of the ward and the conveyance to Martin were a part of a common plan of procedure to obtain possession and control of the ward's estate. The estate of the ward, including the purchase price paid for the deed, is, of course, under the control of the guardian and court, and not under the control of the ward or the next friend who filed this bill. The respondent, Martin, of course, could have protected himself by a cross-bill, seeking this relief against the present guardian and corespondent, or the succeeding guardian, if another one is appointed; and, as the administration is removed into the chancery court, may by a subsequent petition have the funds paid by him refunded. The ward's estate, of course, will not be allowed to retain the purchase price and avoid the sale and conveyance.
As the decree must be in all things affirmed, it is unnecessary to pass upon appellee's or appellants' motions as to dismissing the appeal, striking assignments of error, or securing new bonds.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.