Opinion
6 Div. 416.
February 2, 1917. Rehearing Denied May 17, 1917.
Appeal from Chancery Court, Jefferson County; A. H. Benners, Chancellor.
Erle Pettus, of Birmingham, and F. E. St. John, of Cullman, for appellant. John Denson, of Birmingham, for appellee.
Fraud is a conclusion of law from facts stated and proved. When it is pleaded at law, or in equity, the facts out of which it is supposed to arise must be stated; a mere general averment of fraud, without such facts, is not sufficient. Flewellen v. Crane, 58 Ala. 627; Morgan v. Morgan, 68 Ala. 80; Chamberlain v. Dorrance, 69 Ala. 40; McHan v. Ordway, 76 Ala. 347; 3 Mayf. Dig. 826.
A demurrer to such pleading is not a confession of the fraud; for a demurrer confesses only the matters of fact which are well pleaded, and not conclusions or inferences of law or of fact. Flewellen v. Crane, supra; 3 Mayf. Dig. 826.
Fraud, whether pleaded at law or in equity, whether constituting a right of action or a defense thereto, to be availing, must be supported by positively averred facts supposed to constitute it, from which the court can see that fraud has intervened; general allegations or conclusions of law as to fraud are never allowable. McDonald v. Pearson, 114 Ala. 630, 21 So. 534; Loucheim v. Bank, 98 Ala. 521, 13 So. 374; Reynolds v. Coal Co., 100 Ala. 296, 14 So. 573; 3 Mayf. Dig. 826.
Before a deed can be canceled for fraud practiced in the procurement, facts from which fraud is the legal result must be alleged and proven. Conclusions as to such matters are not sufficient, and the grantee must be shown to have participated in the fraud, or to have had notice, actual or constructive, thereof, before paying the purchase price. Pratt Land Co. v. McClain, 135 Ala. 452, 33 So. 185, 93 Am. St. Rep. 35. See Little v. Sterne, 125 Ala. 609, 27 So. 972; Warren v. Hunt, 114 Ala. 506, 21 So. 939; Moog v. Strang, 69 Ala. 98; 5 Mayf. Dig. 463.
The trouble with complainant's bill is that the facts averred do not show fraud, but are perfectly consistent with good faith on the part of the respondent. The conclusion of the pleader is therefore not supported by the facts averred. While the bill alleges facts to show that respondent lived with complainant only a very short while after the agreement and the deed were executed, the agreement provided that she should have the right to leave unless complainant kept his promises, and the bill nowhere alleges that he did keep his promises, or that respondent left him without cause, nor does it allege any facts to negative a just cause on her part suffered for leaving him and refusing to longer live with him. Construing the bill most strongly against the pleader, it in legal effect alleges that complainant failed to keep his promises or covenants, and that respondent had the legal right and a just cause for leaving him.
The bill is fatally defective, failing to warrant equitable relief, that prayed or any other. The defects were well pointed out by the demurrer, and the trial court erred in overruling the demurrer.
Reversed, rendered, and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.