F. H. Smith Et Al. v. O. B. Smith Et Al. Book Reviews

F. H. Smith Et Al. v. O. B. Smith Et Al. by Supreme Court of Alabama Book Summary

LIVINGSTON, Chief Justice. This appeal is from decrees sustaining the demurrer of Aluminum Company of America and the demurrer
of O. B. Smith and Claude Smith to the bill of complaint as amended. The bill alleges, in substance: That Joseph I. Smith, who died intestate on the 27th day of October, 1950, was the owner
of the real estate in controversy, and that the complainants and respondents, with the exception of Aluminum Company of America,
are the sole surviving heirs at law of said Joseph I. Smith; that Claude Smith, respondent, was appointed administrator of
the estate of Joseph I. Smith by the Probate Court of Barbour County, Alabama; that O. B. Smith, respondent, either alone
or in conspiracy with said administrator, effectuated a fraud on the other joint owners, in that he convinced them that the
administrator was incompetent and promised to watch over the administration, and further that said realty should be sold at
a public sale to pay the debts of the estate; that complainants and respondents agreed that said realty should be sold, but
that the mineral rights therein would be reserved to said heirs; that complainants relied on the representations and promises
of the respondents, and paid no attention to, and made no appearance at the proceedings instituted in the probate court by
the administrator to sell said realty; that the administrator, instead of performing said agreement, offered for sale and
sold said property without reserving the mineral rights; and that said O. B. Smith, respondent, purchased said property in
his own name and procured a deed without reservation of the mineral rights. It is further alleged that O. B. Smith, respondent,
before and at the time of said sale, was familiar with the lands in question, having lived on and farmed the lands for many
years; that at the request of the administrator, who was his brother, O. B. Smith had the timber on said land cruised by one
familiar with the value of growing timber and found that the value of merchantable timber was in excess of $3,000, and falsely
reported to the administrator, who relied on said report and made no independent investigation, that the value of merchantable
timber was about $700; that the debts of the estate of Joseph I. Smith, deceased, amounted to only $783.39, and that the sale
of timber alone would have brought more than enough money to pay the debts of said estate. It is further alleged that O. B.
Smith, after purchasing said land, entered into a contract with Aluminum Company of America, a corporation, giving said company
the right to remove bauxite from under said lands in consideration for said company paying to him a certain sum of money as
royalties for all bauxite removed from said lands. It is further averred that complainants did not discover the fraud or breach
of trust until a time when all rights of review from said order of sale had expired.

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