Opinion
7 Div. 236.
October 26, 1922. Rehearing Denied December 7, 1922.
Appeal from Circuit Court, Talladega County; A. P. Agee, Judge.
Knox, Acker, Dixon Sims, of Talladega, for appellants.
Tenants in common owning the reversionary interest, cannot maintain a bill for sale and division against the owner of the life interest. 202 Ala. 219, 80 So. 41; 162 Ala. 504, 50 So. 287, 136 Am. St. Rep. 57; 180 Ala. 254, 60 So. 828; 201 Ala. 248, 77 So. 838. Fraud is a conclusion of law from facts stated and proved. When it is pleaded in 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. 194 Ala. 469, 69 So. 935; 58 Ala. 627; 68 Ala. 80; 69 Ala. 40; 76 Ala. 347; 9 C. J. 1233; 114 Ala. 630, 21 So. 534; 98 Ala. 521, 13 So. 374; 100 Ala. 296, 14 So. 573; 103 Ala. 630, 16 So. 15; 125 Ala. 609, 27 So. 972; 114 Ala. 506, 21 So. 939; 135 Ala. 455, 33 So. 185, 93 Am St. Rep. 35. The assignment of a bare right to file a bill in equity for a fraud committed on the assignor is void, being contrary to public policy and savoring of the character of maintenance. 11 C. J. 238; 138 Ill. 137, 27 N.E. 931. A mortgagee of real estate is regarded as a purchaser and is entitled to equal protection, and the facts must be shown that the mortgagee had actual or constructive notice of the invalidity of a deed through which the mortgagor claims title. Code 1907, §§ 3347, 3348; 66 Ala. 600; 55 Ala. 369, 38 Ala. 125, 116 Ala. 192, 23 So. 56; 89 So. 520; 27 Cyc. 1139.
Lapsley Carr, of Anniston, for appellees.
Brief on original submission did not reach the Reporter.
On rehearing, counsel contend for error in the judgment of affirmance, in the particulars of the decision that the deed to appellees contained a reservation of a life estate in the grantor, and that appellees are not entitled to immediate possession of the land, and cite 240 Fed. 97, 153 C.C.A. 133.
In January, 1920, Julius A. Powe, seised and possessed of the land in controversy, executed and delivered to his four children a voluntary deed to the same reserving unto himself for life "the rents." This is conceived in the brief for appellant to amount to the reservation of a life estate in the land, and properly so, we think. Reed v. Reed, 9 Mass. 372; Fox v. Phelps, 17 Wend. (N.Y.) 393; Williams v. Owen, 116 Ind. 70, 18 N.E. 389; 3 Washburn, Real Property (5th Ed.) 405; 18 C. J. 306. Previously, in 1914, 1915, and 1917, he had executed and delivered to his son, defendant (appellant), Frank H. Powe, one of the grantees named in the later deed, three several conveyances of the same tract of land. The bill here is filed by the three daughters, being three of the grantees named in the later deed, against Frank H. and Julius A. and the Federal Land Bank to whom Frank H. had given a mortgage to secure a loan to him. The two-fold purpose of the bill is to vacate and cancel the conveyances to Frank H. as having been induced by fraud and undue influence, and the mortgage as having been accepted with knowledge or notice of the infirmity of the mortgagor's title, and to have the property sold for division in lieu of partition. The separate demurrers of Frank H. Powe and the Federal Land Bank were overruled; after which said parties took this appeal.
Complainants are entitled to file this bill for the protection of their estate in remainder notwithstanding they are not in actual possession. Shipman v. Furniss, 69 Ala. 555, 44 Am. Rep. 528; Lansden v. Bone, 90 Ala. 446, 8 So. 65; Dallas Compress Co. v. Smith, 190 Ala. 434, 67 So. 289.
The argument that the deed to complainants savored of maintenance, and hence that they should not be allowed to proceed in this cause, is answered by the decision in Gandy v. Fortner, 119 Ala. 303, 24 So. 425.
If the bill be taken as intending to charge fraud, that is, fraud other than undue influence, it would be seriously defective in failing to set forth clearly the facts constituting fraud; but we read the bill as charging the procurement of the conveyances to defendant Frank H. Powe by means only of that species of fraud known as undue influence. We consider the averments of the amended bill — the amendment withdrew the averment of the grantor's mental incapacity — as equivalent to the averment that the relations between Julius A. and Frank H. Powe were confidential, that the letter had acquired a dominating influence over the former, and exercised that influence to procure the execution of the deeds in controversy. These averments sufficiently challenge the validity of the deeds as having been procured by undue influence. Coghill v. Kennedy, 119 Ala. 641, 24 So. 459. In the absence of the averment of confidential relations, it would be necessary to set forth clearly the facts constituting fraud.
From what has been said it appears that complainants are not entitled to immediate possession or enjoyment of any estate in the land and hence that they are not in a position to file a bill for partition. Wheat v. Wheat, 190 Ala. 461, 67 So. 417; Shannon v. Ogletree, 202 Ala. 219, 80 So. 41. But there was no ground of demurrer addressed particularly to this aspect of the bill. It results that the demurrer was properly overruled. Barksdale v. Davis, 114 Ala. 623, 22 So. 17.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.