Parke et al v. Glover et al
Order that Plaintiffs' requested declaratory and equitable relief (Docs. 64 , 67 ) is DENIED. Signed by Judge Kristi K. DuBose on 3/4/2013. (sdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CHARLES RODNEY PARKE, et al.,
ED GLOVER, et al.,
CIVIL ACTION NO. 11-00639-KD-M
This action is before the Court on the Plaintiffs’ “Response as to Disposition of Property
Conveyed by Quitclaim with Reversion Clause” (Doc. 64) and “Supplemental Brief Regarding
Disposition of Quitclaim Deed” (Doc. 67), along with the Defendants’ late-filed Response (Doc.
70) in opposition. Upon consideration, the Court finds that the Plaintiffs’ requested equitable
and declaratory relief is due to be DENIED.
Pursuant to the settlement agreement at issue in this action, Defendants executed three
promissory notes in favor of Plaintiffs.
The promissory notes were secured by Plaintiffs’
mortgages on certain real property held by Defendants in Alabama. Defendants eventually
ceased making payments on the promissory notes. However, on July 12, 2011, before Plaintiffs
could foreclose on the property, Defendants executed quitclaim deeds on the property (Doc. 641) in favor of Plaintiffs. Plaintiffs subsequently filed this action seeking from Defendants the
outstanding balance due on the promissory notes, as well as attorney’s fees.
This action proceeded to a trial by jury. Plaintiffs introduced the quitclaim deeds into
evidence, both of which contain the following reversionary clause: “If the Grantee [Charles
Rodney Parke] shall bring any action against the Grantor [Valley Creek Land Company of York,
LLC] relative to the property conveyed in this deed, at any time from the beginning of time until
the end of time, this property shall revert back to the Grantor.” (Doc. 64-1 at 1, 5). The jury
returned a verdict in favor of Plaintiffs and awarded them $309,000, the full amount sought as
due under the promissory notes. (Doc. 63). The jury also determined that Defendants were not
entitled to any set-off from this amount for the property they had deeded to Plaintiffs. (Id.).
Plaintiffs now request that the Court grant them clear title to the property subject to the
quitclaim deeds, either through declaratory relief by finding the reversionary clauses to be void,
or through equitable relief in the form of a reformation or a constructive trust. Trial testimony
and statements by Plaintiffs’ counsel indicate that Plaintiffs only became aware of the
reversionary clauses shortly before trial. Plaintiffs have not requested equitable or declaratory
relief in their Complaint (Doc. 1), nor did they designate it as being sought in the parties’ Joint
Pretrial Document (Doc. 42), which was adopted in the Court’s Order on the Final Pretrial
Conference as “constitut[ing] the final statement of the issues involved in this action . . . and
form[ing] the basis of any relief afforded by the Court” (Doc. 49 at 2-3, ¶ 7). Plaintiffs have not
moved to amend either their Complaint or the Order on the Final Pretrial Conference to add this
requested relief. However, for the purposes of this Order, the Court will assume that the issue is
properly being presented by the consent of the parties pursuant to Rule 15(b)(2) of the Federal
Rules of Civil Procedure.
Plaintiffs request that the Court declare the reversionary clauses in the quitclaim deeds
void as violating the rule against perpetuities (Doc. 67 at 3-4). Because the deeds were executed
in 2011, they are subject to the common-law rule against perpetuities pursuant to Ala. Code § 352
4-4 (repealed).1 See Earle v. Int'l Paper Co., 429 So. 2d 989, 991 (Ala. 1983). In Alabama, the
common-law rule does not apply to either the right of entry created by a condition subsequent or
the possibility of automatic reverter. See Schaefers v. Apel, 328 So. 2d 274, 276 (Ala. 1976) (“If
the provision is a condition subsequent, it creates a right of entry in Mrs. Schaefers' estate which
may be exercised by William for a condition broken. The right of entry is not subject to the rule
against perpetuities in Alabama; therefore, it creates a cloud on title which will endure
indefinitely.” (citing Libby v. Winston, 207 Ala. 681, 93 So. 631 (1922))); Earle, 429 So. 2d at
993 (“ ‘A possibility of reverter is the interest left in a transferor who creates a fee simple
C. Moynihan, Introduction To The Law Of Real Property 95 (1962).
common-law possibilities of reverter are not subject to the rule [against perpetuities]. Hinton v.
Gilbert, 221 Ala. 309, 128 So. 604 (1930), 4 Restatement Of Property, § 370, comment e at 2144
(1944).”). Therefore, Plaintiffs’ request for declaratory relief is due to be DENIED.
Plaintiffs request equitable relief in the form of either a reformation of the quitclaim
deeds or a constructive trust. With regard to reformation, Ala. Code § 35-4-153 states in relevant
part: “When, through fraud, or a mutual mistake of the parties, or a mistake of one party which
the other at the time knew or suspected, a deed, mortgage or other conveyance does not truly
express the intention of the parties, it may be revised by a court on the application of the party
aggrieved so as to express that intention . . .” “[T]he party seeking reformation has the burden of
proving with clear, convincing, and satisfactory evidence that the intention he seeks to substitute
By Act 2011-532, p. 880, §§ 1-2 (effective January 1, 2012, per § 3), Alabama repealed § 35-4-4 and
enacted the Alabama Uniform Statutory Rule against Perpetuities, Ala. Code § 35-4a-1 et seq., which
“supersedes the rule of the common law known as the rule against perpetuities.” § 35-4a-8. However,
the Uniform Statutory Rule against Perpetuities only “applies to a nonvested property interest . . . that is
created on or after January 1, 2012.” § 35-4a-6 (emphasis added).
was that of both parties.” Beasley v. Mellon Fin. Services Corp., 569 So. 2d 389, 394 (Ala.
1990) (citing Touchstone v. Peterson, 443 So. 2d 1219 (Ala.1983)).
Plaintiffs cannot reasonably claim fraud as grounds for reformation, as the offending
reversionary clauses were clearly stated on the faces of the deeds. See Batchelor v. Batchelor,
502 So. 2d 751, 753 (Ala. 1987) (“It is well established that the buyer of real estate is charged
with notice of what appears on the face of the conveyance.”). Plaintiffs are also not entitled to a
reformation on the basis of mistake. First, the record indicates that there was no agreement
between Plaintiffs and Defendants, and therefore no mutual intention, leading to the execution of
the quitclaim deeds.
See id. at 393-94 (“Where the reformation is based on mistake, the
existence of a valid agreement to which the instrument can be made to conform is essential. The
trial court cannot make the instrument express a new contract for the parties . . . Where the sole
ground for reformation is mistake, the mistake must be mutual as to all of the parties, but only in
the sense that they must all have agreed to the same terms and have mistakenly assumed that
those terms were properly expressed in the instrument.”). Rather, the record indicates that
Defendants unilaterally executed and recorded the deeds, “without notice to [Plaintiffs]” (Doc.
64 at 2, ¶ 4), before the property was foreclosed upon. The Court rejects any argument by
Plaintiffs that the relevant agreement is the settlement agreement.
Moreover, even assuming that an agreement can be implied by Plaintiffs’ acceptance of
the deeds, such a mistake is not one involving a description of the property conveyed, but rather
is one regarding the extent or nature of the agreement, which does not warrant a reformation.
See Beasley, 569 So. 2d at 393-94 (“[T]he principle on which reformation is based is clear-if the
intent of the parties was to convey the property actually described, but the parties were induced
to enter into the agreement by a mistake as to the extent or nature of the contract, there can be no
reformation; however, “if the intent was to convey the property as it was known to exist, but the
mistake was in the description, reformation is proper. ” McClintock on Equity, Ch. 8, § 95 at
258 (1948). (Emphasis added.).”). In addition, the record does not clearly and convincingly
demonstrate that Defendants did not intend that the reversionary clauses be effective when they
executed the deeds.
Plaintiffs alternatively request that the property be awarded to them through a
The Alabama Supreme Court has defined a constructive trust as follows:
“ ‘[A] constructive trust will be found when property has been either acquired
by fraud, or where in the absence of fraud it would not be equitable to allow it
to be retained by him who holds it.’ Brothers v. Moore, 349 So. 2d 1107, 1108
(Ala. 1977). In essence, a constructive trust is imposed to prevent unjust
Brothers v. Fuller, 607 So.2d 135, 137 (Ala. 1992).
“ ‘Equity may also impress a constructive trust on property in favor of one
beneficially entitled thereto against a person, who, against the rules of equity
and against good conscience, in any way either has obtained or holds and
enjoys legal title to property that in justice that person ought not to hold and
Brown v. Brown, 604 So. 2d 365, 370 (Ala. 1992) (quoting American Family Care,
Inc. v. Irwin, 571 So. 2d 1053, 1058 (Ala. 1990)) (emphasis omitted).
A constructive trust may be impressed upon property when the grantee of the
property has abused a confidential relationship with the grantor. Cole v. Adkins, 358
So. 2d 447, 450 (Ala. 1978).
Hopkins v. Hopkins, 983 So. 2d 382, 387 (Ala. Civ. App. 2007)
The Court finds no circumstances in the record supporting the creation of a constructive
Primarily, even if title to the property has reverted to Defendants pursuant to the
reversionary clauses, retaining title does not unjustly enrich Defendants. Plaintiffs commenced
this action in order to collect from Defendants the outstanding balance due on three promissory
As Plaintiffs state, “[t]he property conveyed by quit claim was secured [through
mortgages] by Parke for the purpose of having some payment on the note between himself and
Glover, in the event Glover defaulted.” (Doc. 67 at 2). At trial, Plaintiffs sought and were
awarded $309,000, the full amount claimed as due on the notes, with Defendants being denied
any set-off from this amount for the value of the property. Regardless of whether Defendants
currently hold title to the property, the fact remains that Defendants are liable to Plaintiffs for all
outstanding indebtedness under the promissory notes. To now award Plaintiffs title to the
property in addition to the full contract amount would be providing Plaintiffs an unwarranted
Finally, Plaintiffs are not entitled to any equitable relief because they have failed to
demonstrate that they have no adequate remedy at law with regard to the property. See Beasley,
569 So. 2d at 393 (“It is well established that equity is a system of remedies that evolved to
redress wrongs that were not recognized by or adequately righted by common law.”);
Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428 So. 2d 17, 20 (Ala. 1983) (equitable
remedies “will only issue where there is no adequate remedy at law”). Specifically, Plaintiffs
have not convincingly shown why they cannot foreclose on the property pursuant to the
mortgages. Plaintiffs argue that the quitclaim deeds should be treated as deeds in lieu of
[a] deed in lieu of foreclosure is any instrument, however denominated,
whereby a mortgagor transfers to a mortgagee the mortgagor's rights in the
mortgaged property. See Ala. Code 1975, § 35-10-50(1). Such an instrument
transfers to the mortgagee all right, title, and interest of the mortgagor in
the mortgaged property, including, but not limited to, all rights of redemption,
statutory or equitable, unless expressly otherwise provided therein. See Ala.
Code 1975, § 35-10-51(1). A deed in lieu of foreclosure does not affect the
rights or interests of any person or entity other than the mortgagor in the
mortgaged property. See Ala. Code 1975, § 35-10-51(5).
Beasley, 569 So. 2d at 393 (emphasis added).
By including the reversionary clauses in the quitclaim deeds, Defendants did not transfer
all of their interest in the property to Plaintiffs. Therefore, the quitclaim deeds are not true deeds
in lieu of foreclosure, and Plaintiffs have made no other argument demonstrating that their ability
to foreclose on the property has been impaired.
For these reasons, Plaintiffs’ request for equitable relief is due to be DENIED.
In accordance with the foregoing analysis, it is ORDERED that Plaintiffs’ requested
declaratory and equitable relief (Docs. 64, 67) is DENIED.
DONE and ORDERED this the 4th day of March 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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