Morgan v. Gaiter

GARDNER, J. [1] The bill as amended seeks only the cancellation of two receipts, copies of which are attached as exhibits to the bill; and that a court of equity will, in a proper case, entertain jurisdiction for such purposes is well established. So. States Fire & Gas. Ins. Co. v. Whatley, 173 Ala. 101, 55 South. 620; Perry v. Boyd, 126 Ala. 162, 28 South. 711, 85 Am. St. Rep. 17; Anders v. Sandlin, 191 Ala. 158, 67 South. 684. Some of the argument of appellant’s counsel seems to be based upon the, theory that the bill seeks to, in some manner, impeach, the decree of the probate court; but, as the amended bill seeks only the cancellation of the written instruments referred to, this discussion needs no further consideration. [2] Upon the question of fraud, the argument is advanced that the fact that the complainant was weak-minded and ignorant, and did not appreciate the legal effect of the instruments he was signing, is not sufficient to justify their cancellation. This insistence, however, overlooks some very material averments of the bill. The respondent was administrator, and it is alleged that the judgment in favor of complainant in the probate court was in excess of $1,400. As such administrator, therefore, the respondent occupied the relation of trustee (Evans v. Evans, 76 South. 95 1 ), in which confidence and trust was to a degree reposed (1 Story’s Eq. Jur. 330). [3, 4] The bill alleges, in addition to the averments that the complainant was a weak-minded and ignorant negro, and in necessitous circumstances, that the respondent concealed from the complainant the fact the complainant was entitled to the sum of $1,431.30, and represented to the complainant that the respondent was due him onljr the sum of $50, and that he (complainant) relied upon this statement in accepting the payment of the latter sum; that he had no one to give him any independent advice, or inform him as to his rights, but that respondent took advantage of his pecuniary necessities, ignorance, and weakness of mind; and that the sum paid him was grossly disproportionate with the value of the estate. “Eraud, as understood and denounced in equity, includes all acts, omissions, or concealments, which involve a breach or lack of equitable dutyj *495 trust, or confidence, justly reposed, -which will be injurious to another, or by which an undue or unconscientious advantage is taken of another.” Kennedy v. Kennedy, 2 Ala. 571. That the averments of the bill are sufficient to justify the cancellation of these instruments upon the ground of fraud is, we think, too clear for further discussion. Pomeroy’s Eq. Jur. vol. 2, §§ 927, 928; Noble’s Adm’r v. Moses Bros., 81 Ala. 530, 1 South. 217, 60 Am. Rep. 175; 1 Story’s Eq. Jur. 328; Code 1907, § 4299; 12 R. C. L. 311. [5] These receipts constitute an embarrassment and impediments in the way of complainant in enforcing the collection of the judgment by execution, and the remedy at law therefore is not adequate and complete. [6] The bill discloses that the complainant has received $50, when he was entitled to more than $1,400, and complainant ex'pressly submits himself to the jurisdiction of the court and offers to make such payment to respondent as may be decreed by the court. Relief is sought on the ground of fraud. The bill is not subject to demurrer for failing to allege an offer on the part of complainant to restore to respondent the sum so received before filing the bill. Martin v. Martin, 35 Ala. 560; Perry v. Boyd, supra; King v. Livingston Mfg. Co., 192 Ala. 269, 68 South. 897; 6 Cyc. 311—2. [7] One of the assignments of demurrer takes the point that the complainant had been guilty of laches as to bar this proceeding. While the bill was filed something less than four years after the execution of the instruments sought to be canceled, yet it is disclosed by the exhibits thereto that there had been previous litigation between the parties concerning this controversy. The question can only be taken advantage of by demurrer when the same is apparent upon the face of the bill. Scruggs v. Decatur Min. Land Co., 86 Ala. 173, 5 South. 440; Gayle v. Pennington, 185 Ala. 53, 64 South. 572. Such is not the case here, and this assignment is not well taken. [8] As to the question of the motion of respondent to require the costs in former suits to be paid, it appears that the only step taken by the court in this respect was a reference to the register to ascertain whether or not the Suits were between the same parties, and concerned the same matters. The report was adverse to the respondent, and decree was entered confirming the report. The record contains nothing further of any value in this connection, and it is quite clear that no error has been made to appear. We have here treated the questions argued by counsel for appellant, and have reached the conclusion that the decree of the court below should be affirmed. Affirmed. ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur. Footnotes [1] 200 Ala. 329.