Opinion
6 Div. 204.
January 13, 1944.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Thos. Seay, of Birmingham, for appellant.
The exhibit is the foundation of the action and becomes a part of the record, and will control averments of the complaint and the nature of the action. Lunsford v. Marx, 214 Ala. 37, 106 So. 336; Tarrant Land Co. v. Palmetto F. I. Co., 220 Ala. 428, 125 So. 807. Reference to a deed record in office of judge of probate, declaring it a part of bill in equity, is not sufficient to incorporate deed as part of bill. Jones v. Caraway, 205 Ala. 327, 87 So. 820. Bills in equity will be sustained on the facts alleged and not those inferred. They are construed against the pleader, and facts not averred are deemed not to exist. Cullman Property Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574.
J. B. Ivey, of Birmingham, for appellee.
The bill sufficiently describes the property involved and incorporation of the deed was not necessary, nor could it affect the bill on demurrer. The bill is drawn under Code 1923, § 8046. Demurrer to such a bill is inapt, a plea or answer being appropriate. Cox v. Hutto, 216 Ala. 232, 113 So. 40; Phillips v. Sipsey C. M. Co., 218 Ala. 296, 118 So. 513; Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 183; Woods v. Wright, 223 Ala. 173, 134 So. 865; Wood v. Cantrell, 224 Ala. 294, 140 So. 345; Hunter v. Watters, 226 Ala. 175, 145 So. 472; Lewis v. Owen, 231 Ala. 480, 165 So. 229. Courts of equity look with favor upon proceedings of this nature. First Nat. Bank v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A. 1918F, 353.
The court overruled the defendant's demurrer to the bill, allowed the defendant twenty days to answer, and defendant appealed.
The bill is filed by the grantor under the provisions of Code 1940, Tit. 20, § 15, which provides: "Any conveyance of realty, of which a material part of the consideration is the agreement of the grantee to support the grantor during life, is void at the option of the grantor, except as to bona fide purchasers for value, lienees, and mortgagees without notice, if, during the life of the grantor he takes proceedings in equity to annul such conveyance."
Fraud is not an essential element of the equitable cause of action provided for in this statute and the proceedings, as the statute indicates, are to rescind the conveyance on statutory grounds, that "a material part of the consideration * * * is the agreement of the grantee to support * * * the grantor, during her life." Bush v. Greer, 235 Ala. 56, 177 So. 341.
As to conveyances made prior to the incorporation of this statute into the Code of 1923, it is not applicable. Bank of Hartford v. Buffalow, 217 Ala. 583, 117 So. 183.
While the bill does not allege the date of the conveyance, nor is a copy of the deed made exhibit thereto, yet it appears from the allegations of the bill that the complainant's husband, through whom she claims, died after this statute was incorporated into the Code of 1923.
Grounds 2, 4 and 7 of the demurrer are well taken and the court erred in overruling the demurrer which was addressed to the bill as a whole. Kelly v. Carmichael, 217 Ala. 534, 117 So. 67.
The decree is, therefore, reversed and one here rendered sustaining the demurrer and the cause is remanded for further proceedings not inconsistent with this opinion. The complainant may amend the bill within twenty days from the filing of the certificate of reversal with the register of the circuit court.
Reversed, rendered and remanded.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.