Warner v. Warner

Where the testimony is voluminous and conflicting, as here, and the trial court's conclusions are supported by legal and competent evidence, the Supreme Court may refrain from making a detailed analysis of the testimony in affirming the decree appealed from. Section 66, Title 13, Code.

The foregoing was our reason for not making a detailed analysis of the legal testimony on the submission of the cause. But inasmuch as Mr. Justice BROWN has detailed some of the legal evidence, we feel that we must do likewise in support of the conclusions reached by us.

The testimony of Mary A. Warner hereinafter set out was introduced without objection, as were the exhibits hereafter referred to. Mary A. Warner testified: "I didn't tell any of the children that I was going to buy the lot. I don't think I ever told anybody about the lot until after I had bought it. * * * I bought it through Jeff Terry. Before I gave that check, and on April 18, 1931, I had given a check for $100.00 to Terry as a binder on the lot, a part of the purchase price. That's the check there. Both the $1400.00 and the $100.00 check are on the Rison Bank * * * I made those payments and also $117.29 due the city of Huntsville for municipal improvements." *Page 567

It seems to be conceded that Mary A. Warner paid for the lot and for material used in the building, a total of $2800, and that the $2500 borrowed from the Huntsville Building and Loan Association was paid out by the association for labor, materials, etc., in the construction of the house.

As stated by Mr. Justice BROWN, "The evidence shows that Mary A. Warner and her son W. A. Warner were very close and intimate. She kept a diary in which she entered many things and in which W. A. Warner made entries." Concerning entries made in this diary, Mary A. Warner further testified:

"That sheet in this challenger composition book that you offered in evidence this morning has my name at the top of it. That first entry in ink, April 19, 1931, Pd. on lot $100.00, either Albert wrote it there or I did. Nobody ever touched this book but me and Albert. This entry in ink, June 10, 1931, and a ditto under Pd. above, balance on lot $140.00 either him or me put that in that book. I might have put it on there myself in ink. I wrote that recording deed and tax $3.00. Labor $50.00 — I wrote that. Street paving $122.84, I wrote that. I paid that. The street paving ran more than I thought for when I bought the lot. After that street paving entry that I made there, all the other entries to the bottom of the page look to me like Albert's handwriting. It must be his. That total is $2800.00 When I started this building out there I had money at home in my trunk or somewhere else, and I have still got some. On page 116 there appears at the top of the page Wm. A. Warner 6-27-31 and there are items of labor and work and so on; in my judgment it looks to me like Albert's handwriting. I think I would be safe in saying it is his. I have looked on page 115 of the book, and in my judgment those entries look like his handwriting to me. On page 114, it says W. A. Warner paid by Mama; that is his handwriting. I have looked at the balance of the entries on this page over here, 114, and in my judgment my son, William A. Warner, Sr., has put that down there, and all of it I have give him the money to pay for it. I tell you that the entries on pages 116, 115, and 114 of the Exhibit N represent cash money I paid at my home $1124.71. I had the cash at home. I spent this $2800.00 out of the bank and the two together went into the home. That is right. After I got my home completed I owed that mortgage on it. I didn't owe the mortgage before I made it. I did owe a balance when I got through. * * * That is my signature on that note dated October 27, 1931, for $250.00. I identify the note referred to, payable to the Huntsville Building and Loan Association, as the note upon which I got the money. That mortgage bearing the same date as the signature on it. That's my signature. That's what I signed to get the $2500,00. I didn't owe anybody but Dilworth that I recall. I didn't take the money I got and pay the bills; the building and loan association paid it out for me. After I made that loan over at the building and loan association, I give the money for the monthly installments to Albert, and he went and paid it. And he would come and tell me he paid so and so."

Mary A. Warner further testified:

"I did let them know I was going to build a home. I was 76 years old when I moved in there. I am 90 now. I didn't have anybody to advise me or to depend on besides W. A. Warner, Sr., and he was just as good to me as he could be. When I started talking about building the house, he tried to figure the plans out, and plan them out. Finally I had a plan for the house. He figured out the house plan. I depended on Albert to get the men to build it. I depended on him from time to time for advice about the building of it. I never had an understanding or agreement with my son Albert Warner or William A. Warner, Sr., before or after I acquired this lot on Walker Street in Huntsville, Alabama, whereby he was to put any money in that building and I was to put money in it and the property was to be mine for my life and at my death the property was to be his. W. A. Warner, Sr., never claimed to me in his lifetime that I owed him anything. He never claimed to me in his lifetime that he had any interest in that *Page 568 home of mine. He never called upon me to execute a deed or any other paper that would turn that property over to him. * * * I never made any agreement of any sort with my son, William A. Warner, whereby he was to advance money and I was to buy a lot and he was to build a house on it, and then the two of us would occupy the house, me two rooms, and him and his family six rooms, and at my death the property would be his. I never made that sort of an agreement with him. I heard something about such an agreement here in the last few months. I can't say when I first heard it. I have heard so much, but I didn't pay no attention to any of it. It might have been before this suit was brought. I don't remember. My son, William A. Warner, Sr., never made any such claim before he died. I don't remember whether or not I heard it before I got sued."

On cross-examination, Mary A. Warner testified:

"Q. And he paid the balance of the mortgage off without saying anything to you about it? A. I give him the money to pay it. And he came back and told me he had sold the cotton. I had let him have the money to buy the cotton and he used it to pay the mortgage. And he said, 'I sold it and I will bring you the mortgage.' I don't know where the checks are for that cotton. I gave him cash for it, not checks. He did not pay me back that money. I gave him money for the cotton. What that house cost me is down in that little book, I think, some place, what the house cost. Now that's extra on the lot."

The diary contains entries showing payments made by Mary A. Warner on the mortgage to the Huntsville Building and Loan Association of approximately $600.

It also seems undisputed that Mary A. Warner paid all taxes on the house and lot; that the taxes were approximately $103 per year for several years, and were then reduced to approximately $95 per year.

The testimony relative to the insurance of the house is, in our opinion, inadmissible. It was shown without dispute that Mary A. Warner did not purchase the insurance, was not present when the policies were issued, and that she never authorized the issuance of them.

We are not impressed with the testimony of Fletcher Foster, nor that of his wife, Edna Foster. Fletcher Foster is the brother of Stella Warner, one of the complainants. His testimony and that of his wife consist, more or less, of general statements as to what was said between Mary A. Warner and William A. Warner, approximately fifteen years ago, and as to what these witnesses understood the agreement between the parties was.

There is much more evidence pointing to the conclusion reached on submission. W. A. Warner was a business man about sixty-five years of age. He was bound to have known the result of his failure to properly protect his interest if any he had. For fifteen years he failed to do so. But we forego further discussion of the testimony. We are clear to the conclusion that complainants have not met the burden of proof cast by the pleadings, and feel that the rehearing should be denied.