Opinion
5 Div. 925.
September 28, 1972.
Appeal from the Circuit Court, Elmore County, in Equity, Joseph J. Mullins, J.
Oakley W. Melton, Jr., Montgomery, Robert S. Milner, Wetumpka, J. Henry Henderson, Jr., Alexander City, for appellant.
Motion to dismiss for want of equity should be sustained only when after admitting all the facts apparent upon the face of the bill, whether well or illy pleaded, the complainant can have no relief, and the bill, for the purpose of such a motion, will be considered as already amended if it is apparent upon a proper statement of the facts and appropriate prayer equitable relief may be obtained. Brown, Admr. v. Mize, 119 Ala. 10, 21, 22, 24 So. 453; Bell, Admr. v. Montgomery Light Co., 103 Ala. 275, 280, 15 So. 569. The language of a bill should on demurrer be given a reasonable interpretation, though construed against the pleader. Ziegler v. Ziegler, 180 Ala. 246, 249, 60 So. 810; Crim v. Holcombe, 254 Ala. 692, 694, 49 So.2d 277. When the allegations of the bill show that the complainant is entitled to relief, and there is a general prayer, the bill is not rendered demurrable by reason of the fact that special prayers are inapt or ask for relief in excess of, or different from, that which the allegations warrant. Rosenau v. Powell, 173 Ala. 123, 128, 129, 55 So. 789; White, et ux v. Lehman, 210 Ala. 542, 543, 98 So. 780. A bill of complaint has equity where facts stated are considered and not the manner of such statement. Amendable defects apparent by allegations made are treated as cured. Holcomb, et al. v. Forsyth, 216 Ala. 486, 113 So. 516; Dudley v. Whatley, 244 Ala. 508, 14 So.2d 141; Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221. A resulting trust will be decreed in favor of a wife where the husband invests her separate moneys in real or personal property and takes title in his own name. And in such a situation where a resulting trust be established, the wife either charges the property with payment of the money or claim the property herself. Where a wife buys land in the name of her husband and the wife pays the consideration money, the husband will be regarded as holding the land in trust for the wife who paid the consideration. There is no presumption of gift where the wife pays for property and the title is taken in the name of the husband. Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558; Dorman v. Knapp, 284 Ala. 387, 255 So.2d 799; Cherpes v. Cherpes, 279 Ala. 346, 185 So.2d 137. Where persons having notice of a contract to convey land to the person already in possession procure a conveyance of the land to themselves, they take it subject to a trust in favor of the person in possession, and the person in possession may compel the purchaser to convey legal title. Ross v. Parks, 93 Ala. 153, 8 So. 368; Dickinson and Winn v. Any, 25 Ala. 424. Under the "Trust Pursuit Rule" or the rule of trust pursuit: A trust will follow property through all changes in its state and form, so long as such property, its product, or its proceeds are capable of identification. It will follow property into the hands of a transferee other than a bona fide purchaser for value, or restitution will be enforced, at the election of a beneficiary, through recourse against the trustee or the transferee personally, or through compelling the transferee to perform the trust except insofar as the transferee is protected as a bona fide purchaser for value. The trust pursuit rule applies where a constructive or a resulting trust as well as where an express trust, has once affixed itself to property in a certain state or form. Knowles v. Canant, 255 Ala. 331, 51 So.2d 355. The acts and contracts of persons owning all the stock of a corporation may be considered as the acts and contracts of the corporation where the effect is the same as though the corporation had acted as such. Williams v. North Ala. Express, 263 Ala. 581, 83 So.2d 330.
Reneau Reneau, Wetumpka, for appellees.
Where demurrers of respondents are sustained and complainant given a definite time to amend or plead further, and complainant declines to do so, it is proper for the trial court on motion of the respondents to dismiss the bill. Fife v. Pioneer Lbr. Co., 237 Ala. 92, 185 So. 759; Clark v. Whitfield, 213 Ala. 441, 105 So. 200; DeGraffenried v. Breitling, 192 Ala. 254, 68 So. 265; Equity Rule 75. When complainant has knowledge that an indispensable or necessary party is not made a party to the cause, and complainant neglects to take measures to bring said party into the cause, it is proper for the bill to be dismissed. Equity Rule 74. On demurrer facts alleged in a bill of complaint are construed most strongly against the pleader. City of Montgomery v. Brown, 285 Ala. 64, 228 So.2d 820; State v. Aluminum Ore Co., 263 Ala. 442, 82 So.2d 800; D. B. Clayton Associates v. McNaughton, 279 Ala. 159, 182 So.2d 890. In order to state a cause of action a bill of complaint must state facts and not merely conclusions. Cullman Property Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574; Rumage v. Dry Dock Savings Bank, 278 Ala. 526, 179 So.2d 277; Springdale Gayfer's Store Co. v. D. H. Holmes Co., 281 Ala. 267, 201 So.2d 855; Hudson v. King, 279 Ala. 198, 183 So.2d 794. An affidavit or verification based on "knowledge, information and belief" is insufficient. Bd. of Water Sewer Commissioners of the City of Mobile v. Spriggs, 274 Ala. 155, 146 So.2d 872; Burgess Co. v. Martin, 111 Ala. 656, 20 So. 506; Brook v. Everett, 271 Ala. 380, 124 So.2d 100.
This case is an appeal from a final decree of the Circuit Court of Elmore County, Alabama, sitting in equity, dismissing the cause filed by the complainant-appellant, Mae E. Sanders, against the respondents-appellees, Erle Danley, Samuel Kaufman, Merwyn E. Danley, I. D. Sanders, and Deer Park Estates, a corporation.
Mae Sanders filed her bill of complaint on August 4, 1970. Demurrers filed by all the respondents were sustained, and the appellant was given thirty days to amend her bill. On March 9, 1971, the appellant filed an amended bill of complaint to which the respondents, with the exception of I. D. Sanders, filed demurrers which were sustained on April 8, 1971. The court allowed the appellant fifteen days in which to amend. No amendment was made by the appellant and the cause was dismissed on May 8, 1971.
The single, dispositive issue for consideration on this appeal is whether the bill of complaint alleged facts sufficient to state an equitable cause of action against the appellees?
The pertinent facts, as taken from the appellant's original and amended bill of complaint with attached exhibits, are as follows: The appellant was married to I. D. Sanders, one of the appellees, on April 22, 1959, and, on the same day, her then husband and a Mrs. Harwell entered into a "bond for title" agreement whereby Mrs. Harwell was to sell property, (hereinafter referred to as parcels I and II) to him. The down payment of $400 and monthly payments of $200 each were paid by the appellant. Appellant claims she made payments totaling $13,233.40 to Mrs. Harwell. Her then husband was the named vendee of the "bond for title" agreement with Mrs. Harwell. On April 29, 1963, the appellant and her then husband, I. D. Sanders, agreed to permit Noble Crump to purchase parcels I and II due to the inability of the appellant to continue making payments to Mrs. Harwell. In August of 1965, the appellees, Erle Danley, Samuel Kaufman, Merwyn Danley, and I. D. Sanders, formed Deer Park Estates, and shortly thereafter, one of the incorporators, Erle Danley, purchased parcel I from Noble Crump. The corporation, Deer Park Estates, purchased parcel II from Crump. On August 27, 1965, Erle Danley leased parcel I to I. D. Sanders for $100 per month, and on the same day executed an option to purchase the same parcel to I. D. Sanders. The $100 monthly payments were made by the appellant, out of her personal funds, starting on September 1, 1965. The appellant's husband deserted her in April, 1969, after which Erle Danley sought to sell parcel I on which the appellant had resided since April, 1959. The appellant then filed suit praying for whatever relief was appropriate under the facts as alleged.
Appellant contends that the facts, as alleged, show that the bill, as amended, contained equity and the order of dismissal was erroneous.
Appellant's theory is that since she alleged that she made payments for parcels I and II, either to Mrs. Harwell or to Noble Crump, she had an equitable interest in the property. Appellant argues that she should have the property on the theory that having made payments to Mrs. Harwell on the "bond for title," a "resulting trust" was created whereby her former husband held her rights to the property in trust so that he violated his fiduciary duty when he allowed the respondents, Deer Park Estates, and Erle Danley, to purchase the property. This theory apparently must fail. No facts in the bill of complaint show that the appellant continued to make payments to Noble Crump following the conveyance of the land from Harwell to Crump. On the contrary, the original bill of complaint contains the following allegation:
". . . (S)he, (the complainant) was unable to continue to make the payments in accordance with the agreement entered into on April 22, 1959, and that Respondent, I. D. Sanders, and your complainant permitted Noble Crump to purchase the lands hereinabove described from Mrs. Josephine Harwell on the 29 day of April, 1963, said deed being recorded in Deed Record Book 151, at Page 81, in the Office of the Judge of Probate of Elmore County, Alabama." (Emphasis Added).
Nothing appears in this allegation to show that the appellant continued to make payments to Noble Crump under the pre-existing "bond for title" arrangement. A "bond for title" is in legal effect ordinarily regarded as a contract to convey land. 91 C.J.S. Vendor and Purchaser § 44, p. 895. From aught that appears, the appellant, on realizing her inability to continue making payments under the "bond for title" arrangement with Harwell, agreed to have her contract right to the property cancelled and title conveyed to Crump. Nothing appears in the complaint to show that Crump took the property pursuant to an agreement to convey title to I. D. Sanders on completion of monthly payments by the appellant. Rather, it appears that Crump took the unencumbered title from the Harwell. Thus, any pre-existing fiduciary duty owed by I. D. Sanders to the appellant was extinguished in that it does not appear that I. D. Sanders continued to have an expectancy in the title to the property held by Crump as a result of payments agreed to be made or actually made by the appellant to Crump.
In summary, the amended bill of complaint, when taken with the original bill, does not contain facts which show that the "bond for title" agreement continued when the land was conveyed to Crump. No allegations are made that the appellant continued to make payments on the bond for title to Crump. Thus, the bill does not show that the appellant retained any interest in the property that could be protected from the misdealings, if such existed, of the appellees. Absent such a showing, there is no equity in the bill so that the lower court did not err in sustaining the general demurrers of appellees, Erle Danley, Merwyn Danley, Sam Kaufman, Deer Park Estates, a corporation, to the amended bill. Nor did the lower court err in dismissing the bill upon the failure of the appellant to amend within a reasonable time. Savage v. Savage, 246 Ala. 389, 20 So.2d 784 (1945).
However, I. D. Sanders did not refile his demurrer to the amended bill so that the appellant was under no obligation to amend the bill for a second time as to I. D. Sanders. Nevertheless, the dismissal as to I. D. Sanders was also proper in that, where a bill does not show an equitable right as in the instant case, the court may dismiss the bill on its own motion. Caudle v. Cotton, 234 Ala. 126, 173 So. 847 (1937).
For the reasons set out above, the lower court did not err in dismissing this cause as to all the appellees, so that the decree of dismissal is affirmed.
Affirmed.
All Justices concur except SIMPSON and COLEMAN, JJ., not sitting.