Martin v. Kelly , 132 Ala. 201 ( 1902 )

DOWDELL, J.

— On the former appeal in this case (Martin, et al. Kelly, 113 Ala. 577), which appeal was taken from the decree of the chancellor sustaining a motion to dismiss the bill for Ararat of equity, it was then held that on the averments of the bill a resulting trust was 'created in. favor of the complainants and that ¡the decree dismissing the bill for want of equity was erroneous. The question of the statute of limitations and staleness of demand was not presented for consideration on that appeal. It appears from the bill, as well as the facts as now presented, that the resulting trust sought to be enforced arose on the act of Sylvester Martin, the father of- the complainants, in taking the deial to the land in question in his own name, v. hi eh was paid for with money furnished by one Glover, the uncle of complainants, and averred to be intended for their benefit and use, and that this was done in the year 1870, more than twenty years before the filing of the bill; that during all of ¡this time, most, if not all, of the complainants were persons sui juris.

On these facts, the statute of limitations, as well as the defense of the staleness of demand, under the authority of Brackin v. Newman, 121 Ala. 311, seems conclusive against- complainants’ right of action. See also in this connection Robinson v. Pierce, 118 Ala. 273. And as to the staleness of the demand, see Nettles v. Nettles, 67 Ala. 599; James v. James, 55 Ala. 525; Solomon’s Heirs v. Solomon's Admr. et al., 81 Ala. 505; Gibson v. Heriat, 29 Am. St. Rep. 17; Smith v. Thompson, 54 Am. Dec. 126.

It is true the bill contains the following averment: “Complainants aver that the said Sylvester Martin and the complainants in ¡this cause, lived together in the quiet enjoyment of this land up until the year 1885.” This allegation is not sufficient to avoid the statute of limitations. See Phillippi v. Phillippi, 61 Ala. 41. The fact that there was testimony offered on the part of the complainants tending to show .that Sylvester Martin, the father of complainants, during the time he was in possession of' said land, recognized the rights of the complainants to said lands, can be of no avail to the complainants for the reason that the bill contains no averment of such recognition on the part of said Sylvester Martin. Proof without allegation is as unavailing as allegation without proof. The averment in the bill that the complainants lived on said land with Sylvester Mantin, their father, in the quiet enjoyment of the same until the year 1885, does not amount to an averment of the recognition on the pare of Sylvester Martin of complainants’ rights in the lands.

The decree in this case was rendered on a final submission of the cause on the pleadings and evidence, and as we see no reason for disturbing the decree, it will, therefore, he affirmed.