18 Ala. 417 | Ala. | 1850
This case has been elaborately argued, and we have examined with care the numerous authorities, to which we are refered by the respective counsel.
As some of the. points raised have been ably discussed in the decisions, to which reference is made, we shall content ourselves with merely stating, as succinctly as we can, our conclusion upon them, without entering at large into their discussion, but there are other points of more difficulty, and which will require.a more elaborate investigation. 1. It is well settled that the plaintiff in ejectment may declare for the whole, or the entire interest, and recover a less interest. — McArthur v. Porter, 6 Pet. 205; Adams on Ejec. 211, and cases cited in notes; 12 Wend. 170; 13 ib. 578; 8 Dana, 196.
2. Neither, in. our opinion, does the death of a portion of the lessors of the plaintiff, since the commencement of the suit, de
3. The Circuit Court held that, as a married woman had not the power to devise her real estate, the will of Mrs. Gannard in this case did not have the effect of passing the title, so as to prevent her heirs from succeeding to the inheritance. This has been the point mainly controverted in the cause.
The question presented is one of novel impression in this court, and we have looked into the authorities with care, to ascertain what construction should be placed upon our statute of wills, (Clay’s Dig. 596, § 1,) which is general in its terms, making no mention of married women, either as enabling them to devise, or as denying to them the power. Our statute is similar to the 32 Hen. VIII, c. 1, which enacted that “all and every person and persons, having, &c., shall have power to give, dispose, will and devise, &c.” — Thus it was left, under the English statute, to the courts to determine who were embraced in this general language, and it was held, that while married women were embraced by the letter of the statute, still they did not come within its spirit and meaning; that the equity of the law corrected these general expressions, and restrained them to
The construction which was placed by the English Courts upon the first statute of wills, seems generally to have been followed by the American Courts, in the several States whose statutes are similarly worded, and the better opinion seems to be that a married woman cannot make a valid will of lands, even with the consent of her husband, and without any statute prohibition to that effect. — Marston v. Norton, 5 N. Hamp. Rep. 205; West v. West, 10 S. & Rawle, 445; Osgood v. Breed, 12 Mass. Rep. 225 ; 4 Kent’s Com. 505; note a. (6 ed.); in the matter of Yates’ Will, 2 Dana, 215; S. Touchstone, 402; Kelly’s Devisees v. Kelly, 5 B. Monr. 370 ; 1 Wms. on Exr’s, 42, note 1, (Amer. ed.;) West v. West et al., 10 S. & Rawle, 445, and cases cited.
The contrary doctrine of Judge Reeves, in his work on the Domestic Relations, page 157, cannot be supported. The argument which deduces the power to make a valid devise from the right which a married woman possessed of conveying her estate by the consent of her husband, we do not think can be sustained. By the common law, no one could devise his lands, it then required a statute to confer the power; the statute of 22 Henry VIII, confered it as we have said, in general terms— nothing is said as to married women, but the statute was construed not to extend to them. She could then by the common law have passed her title by fine. — McQueen on Hus. & Wife, 144-5-6. This form of transmitting title was succeeded by a conveyance by the wife, with the assent of the husband, the deed, however, being of no validity as against her until it was ascertained (according to the forms which the law required at the time the will now under consideration was executed,) upon her private examination, that she executed it freely and voluntarily, and thus she was guarded by the proper officers of the law against the undue exercise of the husband’s áuthórity.
• 4. But it is 'insisted by the plaintiffs in error, that the will of • Mrs-.-Gannard having-been duly-.admitted to probate in the Orphans’ Court of-Mobile, such probate is conclusive of the validity off the-will to pass-the -title, and-of her- capacity to devise, and that the same cannot be collaterally impeached. It is certainly true- that the validity of a will, 'duly admitted to probate, cannot be collaterally impeached;- but this is not the question before us. The object of Mrs. Gannar-d’s heirs is not to impeach her will» but to-show that the land in-controversy-did not pass hy it. They •'deny-its- effeCt -in'daw as passing, title .to. the land, by reason of her legal-'-incapacity to devise.: - 'The-.effect-.then of ..a,probated
Before a will of personal property takes effect in England, it must be proved in the Spiritual Court, and the Chancery Court will not take jurisdiction of it, until after probate. In Henley v. Philips, Lord Hardwicke is reported to have said, that though a feme covert has power of disposing of a sum of money, or other thing, by a writing purporting to be a will, yet after the wife’s death, the proving it in the Spiritual Court will not give it the authority of a will, but it will still be considered as an instrument only, or an appointment of such sum, or other thing, in pursuance of the power. — 2 Atk. Rep. 49; see, also, 4 Burns Ecc. Law, 53, where the rule is stated to be, to grant the probate of such will in the Prerogative Court, and to try the question at law, whether the husband has confered upon the wife the power to make such will. In the Goods of Sarah Biggar, 2 Curtis’ Ecc. Rep. 336, the question arose upon the probate of a will of a married woman, under a power reserved by marriage settlement, whether it had been duly executed according to the power. The court say, “formerly, in such cases, this court left it to a court of equity to say whether the power was duly executed or not; but it has been held lately, that this court is bound to give its opinion in the first instance, as to the validity of the execution. It is really a questiou for a court of equity. The safest way will be to allow pr.obate to pass, leaving the question, as to the execution of the power, open; it is clear a court of equity cannot act, unless the court of probate allows probate to pass.” — See also, 1 Phillimore, 352; 3 Adams, 235. Notwithstanding the exclusive jurisdiction of the Ecclesiastical Courts over the probate of wills of personal estate, yet it is the constant practice for courts of equity, as to wills of married women, to enquire whether they amount to a good execution of the power vested in them. So in Watt v. Watt, 3 Ves. 244-6, the Lord Chancellor said, “ the claim of the husband derives no aid from the probate he has obtained, for the Ecclesiastical Court had no jurisdiction to determine whether an instrument is a good execution of a power.” — See also, Stephens v. Bagwell, 15 Ves. 140-54-5. In a recent case, it was said by Sir John Leach,
The same doctrine appears to have been, recognised by many-'of the American courts, in States, whose courts' of probate, have jurisdiction over the subject of proving wills, &c., commensurate wdth our own. Thus, in Yates’s Will, 2 Dana’s Rep. 215, the court, after admitting that there were well established exceptions to the general rule, which denied to married women the. power to make wills, and that before such will could properly be admitted to probate, the propounder of it must show, at least, a prima facie case to authorise it, such as, that she was executrix, had a separate estate, or. power to appoint by will., say, that it is sufficient that the County Court sees that there exists a state of case, in which it might be right and. proper that a married woman should make a will, to allow- it to be proved and recorded, leaving it to other and more appropriate tribunals to determine what effect it has when recorded; and the.court cites Wms. on Exr’s. 42 and 211, to show that although the instrument creating the power must be exhibited by the executor with-his allegation, yet the Ecclesiastical Court will not look nicely into the question whether the appointment is authorised by the power, as the grant of the probate does not determine, that right,, but leaves it open to the decision of the temporal courts.
In Kelly’s Devisees v. Kelly, 5 B. Monr. 369-70, the court say — “ How far the power, if it exists, may have been pursued or exceeded, or how far the -will may be available, as a disposition of property under the power., are.ulterior questions, not necessarily nor properly presented for decision in the court of probate.” So, also, in Johnson’s Trustees v. Yates’s Devisees, 9 Dana, 491, some of the devises in the will .were held to b.e inoperative, after the will had been admitted to probate, because they exceeded the power of the testatrix.
i. In Holman v. Perry and others, 4 Metc. Rep. 492, the court, after stating the law to-be, that to make a devise by a married
The case of Herbert v. Hanrick, 16 Ala. 581, involved the question whether a stranger, in a collateral proceeding, could take advantage of a supposed irregularity in the probate of the will, the same appearing to have been proved by one witness, though regularly attested by three. We held that he could not thus impeach it, and that the Orphans’ Court having rightful jurisdiction, its action in the matter of the probate was final and conclusive upon all persons, until it was directly impeached, as provided by láw. Thát was not the will of a married womán, but óf á party capable prima facie of devising. Besides, the question had relation to the execution of the will, and did not involve the execution of a power. It is, we think, very clear, that while that decision is correct, it does not in the slightest degree militate against the view we here take.
We concede however, that several of the decisions cited by the counsel for the plaintiffs in error would seem to hold the probate in this casé conclusive upon the heir as passing the title.
5. But it is further insisted, on the part of the plaintiffs in error, that no such title was shown in the plaintiffs below as will enable them to maintain this action, and their title is assailed upon two grounds: First, it is said the title was in Hidalgo, who sold to Registe Bernody, whose heir sold to Eslava, who is the vendor with warranty of the landlord of defendants below, and that they are protected by this title. Second, that the confirmation of the claim of Mrs. Hidalgo operated, if it vested any title, an investiture of title in her husband, and enured to the benefit of his vendee or heirs, she having died after such confirmation, but before the land was surveyed, and having exhibited her claim to the land commissioner as the wi.dow of Hidalgo, claiming to hold as such. Let us briefly examine these positions.
6. But it is argued that the defendants’ vendor having acquired Bernody’s title, it cannot be defeated upon the ground of adverse possession, because, deducting the time the defendants, and those under whom they claim, have had possession, the right of entry under the Bernody title would not have been barred ; and that to hold it taken away by lapse of time, under the circumstances, would be to invoke the defendants’ own pos
In Jackson ex dem. Boune v. Hinman, 10 Johns. Rep. 392, it appeared that the lessor of the plaintiff claimed title to the premises, by virtue of a sale under a judgment against one Gideon Brockway, who derived his title from one Camp, who had built upon the premises, and derived his title under what was called the Lindsey patent. The defendant was the tenant of one Livingston, who purchased from said Brockway, after the judgment had created a lien, and entered under that purchase, but, some years thereafter, took a quitclaim deed under what was denominated the Catskill patent; and he set up the latter title, as older and better than the plaintiff’s ; but the Supreme Court held that as Livingston, came in under the title from Brockway, he was estopped from denying that title, as against the grantee under the same title. “It cannot be a good title for him, at one time,” say the court, “and not a good title at another. He cannot be permitted to gainsay that title, as against a plaintiff, who claims under the same title, by a prior right,” &c. In Lessee of Foster v. Joice, 3 Wash. C. C. Rep. 598, Mr. Justice Washington said, that wherever the defendant opposes to the plaintiff’s title an outstanding, superior title in a third person, under whom he does not claim, it must be a sub- ■ sisting and available title, on which the asserted owner of it
We think it very'clear from these authorities, that the defendants could not have availed themselves of the title, had it been outstanding in Bernody’s heir. And we can see no principle of law, upon which we should be justified in holding that the act of transfer of an extinguished titlp should give it a vitality, an operation, which it did not possess before, as respects the rights of third parties. Did the statute operate only upon the remedy, by which a party who is barred must recover the possession, then there might be something in the proposition that the party in possession, having acquired the barred title, might set it up to defend his possession. But that is not its operation. It not only divests the party of all remedy, but of the right itself, so that a sale of such title to one in possession amounts to nothing, and furnishes no protection. The possession of the defendants, and those through whom they claim, was shown to have been adverse to the claim of Bernody. They derived their claim of title through the will of Mrs. Gannard, and holding in fact in subordination to that title, they cannot by their election change the true character of that possession, and say it was not adverse to Bernody. It is among the transactions of the past, over which nothing has power. Suppose that Eslava had yielded the possession to Bernody’s title, which was barred, and had brought his action upon the covenants in the deed from Gannard to him, (conceding, for the sake of the illustration, that the will of Mrs. Gannard passed her title to him,) would it be contended for a moment that he would have been allowed to deduct the time he has held under Gannard, and thus give the title of Bernody vitality, as against the title under which he held? Certainly not. So neither, when the same title is asserted by the heir, should he be allowed to say that, although he has held under it, yet such possession was not adverse to an antagonist claim. It was either adverse and hostile to the claim of Bernody, or in subservience to it. Certainly it-was not the latter, and upon no principle of retrospective relation can it be made so to operate. We conclude, therefore, that the claim of Bernody furnishes no ground of defence to the action, under
8. Having shown that Mad. Hidalgo succeeded to her husband’s title, which title was confirmed in her by the act of 1822, the subsequent survey, &c., which was made after her death, certainly did not operate to change the title out of her and vest it in another. Its effect was more particularly to designate and set apart the latid, and to authorise the issuance of a patent. It was but cumulative evidence of title, enuring to the benefit of the person to whom it had previously been confirmed, or to her heirs, she having previously died, and did not operate to vest title in the vendee of Hidalgo; for, to give it this effect, the survey and location would defeat the operation of the confirmation, which adjudged the title to be in Mad. Hidalgo.
It is unnecessary for us to dwell upon the question, whether the possession ofMad. Hidalgo was adverse to that of Bernody. From the time she made the application to the government commissioner for confirmation of her title, or, to speak more accurately, for its recognition, there can be no doubt of the adverse character of her claim. This itself amounted to an open and notorious assertion of a hostile adverse claim; and vve think there was no need for invoking the doctrine of relation to render it adverse. So that if the court erred, in charging that the confirmation related back, so as to make her holding adverse, it was in no sense injurious to the plaintiffs in error.
We have shown, in the previous part of this opinion, that Mad. Hidalgo, having the title to the lot by descent from her husband, which title she asserted, as required by the act of Congress, and which has been duly confirmed, her subsequent husbands, having entered and held under her title, obtained no interest in the fee. Upon her death, her will passing no title, the