Opinion
7 Div. 106.
April 7, 1921.
Appeal from Circuit Court, Clay County; E. J. Garrison, Judge.
Frank L. Vance, Solicitor for Complainant.
Footnote. — The respondents are required to answer every material allegation in the foregoing bill of complaint, from paragraphs 1 to 7, inclusive; but answer under oath is hereby expressly waived.
Frank L. Vance, Solicitor for Complainant.
Exhibit A to Bill.State of Alabama, Clay County.
To the Honorable Hugh D. Merrill, judge of said court, sitting in equity, humbly complainant, your orators, Princes Carmichael, Edmund Carmichael, Moses Carmichael, Thaddeus Carmichael, Malcomb Carmichael, Artemus Carmichael, Anna Pitts, Bama Ware, and Nancy Pryor, respectfully show and make known unto your honor, the following facts, to wit:
(1) That Anna Pitts, Bama Ware, and Nancy Pryor reside in the state of Tennessee, that the other orators live in the state of Alabama, and that all of the above-named orators are over the age of 21 years and of sound mind.
(2) That Warren Carmichael and Tolbert Carmichael are each over the age of 21 years and reside in Clay county, Alabama, and are of sound mind; that James Carmichael and Miles Carmichael are each over the age of 21 years and of sound mind, and reside somewhere in the state of Georgia, but that the correct address of said persons is unknown to orators.
(3) That orators and said Warren D. Carmichael, James Carmichael, Miles Carmichael, and Tolbert Carmichael, who are hereinafter referred to as respondents, own jointly the following described property, to wit: The northeast quarter of the northeast quarter, the northwest quarter of the northeast quarter, and the southwest quarter of the northeast quarter of section 1, township 22, range 5.
(4) That each of said parties has the following interest in said property, to wit: Bama Ware, Anna Pitts, and Nancy Pryor each own an undivided 1/33 interest, and each of the other complainants and respondents own an undivided 1/11 interest.
(5) That said property cannot be equitably divided among the joint owners thereof without a sale for the division of the proceeds among said joint owners.
(6) That it was necessary for complainants to employ a solicitor to aid them in the proceedings to sell said property for a division, and they have employed McKay Crumpton, practicing solicitors, of Ashland, Alabama, to represent them in said proceedings, and that said solicitors should be paid a reasonable fee for their said services.
The premises considered, orators pray that Warren D. Carmichael, James Carmichael, Tolbert Carmichael, and Miles Carmichael be made parties respondent to this bill, and that notice issue to them as required by law and the rules of this court, and that on final hearing your honor will make and enter a decree ordering the said above-described property sold for division among the joint owners thereof, ascertaining the amount of the interest of each party, and that your honor will order a reference to determine the amount of the solicitor's fee which should reasonably be paid orators' solicitors, and will order that said amount be-taxed as costs and paid as other costs in this cause. And if orators have not prayed for the proper relief, they ask such other, further, additional relief, general or special, may be granted them as may to the court seem meet and proper, and orators will ever pray, etc.
McKay Crumpton, Sols. for Complts.
Respondents filed exceptions to that part of paragraph 3 of the bill which states the loss of the records in the probate court, all of paragraph 4, paragraph 5, paragraph 6, paragraph 7, and Exhibit A to the bill, and also demurrers setting up nonjoinder of parties complainant, in that Warren Carmichael should have been made a party, that the bill is multifarious in seeking to amend a decree of probate court, and in seeking to change a decree to which respondents are not parties, and for other reasons stated in the opinion.
McKay Crumpton, of Ashland, for appellants.
The exceptions were well taken and should have been sustained. 119 Miss. 410, 80 So. 119. There was a nonjoinder of parties complainant. 187 Ala. 165, 65 So. 381; 129 Ala. 214, 29 So. 920; 107 Ala. 163, 18 So. 247; 10 Ala. 149; 16 Cyc. 185. The bill is multifarious. 165 Ala. 144, 51 So. 755, 29 L.R.A. (N.S.) 819, 138 Am. St. Rep. 19, 21 Ann. Cas. 1102. The charges of fraud were insufficient. 72 Ala. 207; 76 Ala. 347; 201 Ala. 150, 77 So. 574; 16 Cyc. 231. The bill will be construed more strongly against the pleader. 201 Ala. 150, 77 So. 574.
Frank L. Vance, of Talladega, for appellee.
No brief reached the Reporter.
Appellee filed her bill in this cause, averring her sole ownership of a tract of land in Clay county, and seeking the vacation, cancellation, and annulment of a deed acquired by defendants at the end of a proceeding for the partition by sale and a deed executed by herself to defendants purporting to convey the same tract. The proceeding in question and the deeds referred to are averred to have been engineered and procured by the fraud of defendants. The trial court overruled exceptions and a demurrer to the bill.
The averments of the bill are designed to present a history of the process by which, through the alleged manipulations of defendants, complainant lost her title to the tract of land which had been the homestead of her deceased husband. Complainant might have omitted averment of the proceeding in the probate court, since there was no record of it, and what ought to be of record must be proved by record; but we cannot see that a candid statement of what was there done, purporting to vest title in one of complainant's children, though not effectual to that end, because the homestead had vested by law in complainant alone, and because there was no record showing anything different, should be considered prolix. It was not in fact stated with prolixity, or impertinent, or scandalous. Nor were other parts of the bill, to which defendant's exception was directed, impertinent to a fair statement of complainant's case, or otherwise objectionable.
Nor was the demurrer well taken. If it had appeared that complainant's youngest child was interested in the homestead as a tenant in common, it would have been necessary, of course, that he be made a party, either complainant or defendant; but the bill shows that in law and fact the child is not so interested, and this status must be accepted, as against the demurrer and until the proof may show the contrary.
Nor is the bill multifarious. We have stated the purpose of the bill, and that purpose can only be accomplished effectually by the cancellation of both the deeds under which defendants claim.
The fraud complained of is stated with sufficient particularity. False and fraudulent statements and representations inducing the decree of sale and the deed to defendants are stated, and whether proceeding from one or the other of the defendants is immaterial. If there was a purpose to get complainant's property by fraud, as the bill avers, it can avail defendants nothing that the execution of the plan was committed in part to one and in other part to the other of them. Nor do we find inconsistencies in the bill, nor that it is bad for that, being an old and ignorant negro woman, complainant relied upon statements made by defendants, when, had she been more alert, better informed, and less dependent, she ought to have known better. In short we think the bill will suffice as against the demurrer.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.