Oglesby v. Thomas

16 So. 2d 320, 245 Ala. 133, 1944 Ala. LEXIS 230

• Court: Supreme Court of Alabama
• Decided: January 13, 1944
• Docket: 6 Div. 204.
• Status: Published

Opinion

BROWN, Justice.

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 ap pears from the allegations of the hill 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.