Bean v. Welsh, 17 Ala. 770

Bean v. Welsh

17 Ala. 770 | Ala. | 1850

PARSONS, J.

This was an action of trespass to try titles to a tract of land, and was brought by the defendant in' error, Catherine Welch, against Benjamin F. Bean. The facts were these: Jeremiah Pate, the father of the plaintiff below, being seized of several tracts of land, executed his last will, by which he gave to his wife during her life an eighty acre tract on which he lived, besides several slaves, and other articles of personal property. He also bequeathed to all his children some small pecuniary legacies, and gave to Thomas Pate, one of his sons, all the rest of his estate, both real and personal. When this will was offered for probate, the other children appeared and came *772prepared to contest it, whereupon a covenant was entered into under seal, between Thomas Pate, and the other children, by which it was agreed that the will should be admitted to probate; and the parities covenanted and agreed with each other that they should all be entitled to a full and equal participation in the estate of their father, as if he had died intestate, with the exception of four negroes previously given by the testator to Thomas, which were not to be considered as part of the estate-. It was further covenanted and agreed that the estate should be divided equally, and precisely as if the testator had died intestate. This agreement was acknowledged and recorded, and all opposition to the will being withdrawn, it was duly admitted to probate. After this, on the application of the executor, a commission was issued to' five persons, directing them to divide the estate amongst the heirs of the testator, who in pursuance thereof made division of the lands, and the tract sued for was allotted to the plaintiff, who was then a married woman, but whose husband died before the institution of this suit. The division so made was returned to the Orphans’ Court, and was recorded, and so far as-we can discover from the record is satisfactory to the children and heirs of the testator. The defendant showed no title or claim whatever, but relied on the want of title in the plaintiff alone, as bis defence to this suit. The court instructed the jury that the plaintiff was entitled to recover.

We think the covenant entered into by Thomas Pate estops him from asserting a title to the land as devisee under bis father’s will. Indeed he could not be permitted to claim title to the whole as devisee, after he had entered into a covenant founded on a sufficient consideration, the effect of which was to renounce his title as devisee, by stipulating that the estate should be divided between all the heirs; as if the testator had died intestate. The legal effect of this agreement was to vest in the heirs of the testator the same title they would have taken, had he died intestate as to the lands devised to Thomas; for we think the principle is well settled, that an estoppel will not only bar a right or title, but will pass one to him in whose favor the estoppel works. Thus if A. convey to B. with covenant of warranty, and at the time he lias no estate in the land, but afterwards acquires title, this title will inure to his grantee in the deed. — Comstock et al. v. Smith, 13 Pickering, 116; Springsteen v. Schemerhorn, 12 *773Johns., 357; Kennedy & Moreland v. The Heirs of McCartney, 4 Porter, 141; Tillotson v. Kennedy, 5 Ala. 407. If indeed an estoppel could not operate as a conveyance, or as a medium through which the title would pass to him, in whose favor the estoppel works, we might frequently lock up the title in him and his heirs, against whom the estoppel operated, and the party for whose benefit it was intended might find himself without title and unable to recover from a mere intruder; for if the title to the after acquired estate did not pass to the grantee by means of the estoppel, but it only precluded the grantee from asserting an after acquired title, it would be difficult to see how he could recover in ejectment from one who had no title. To show title in another would not enable him to recover, and he having none could not maintain the suit. To give therefore the full effect to an estoppel, it is clear, that it must frequently operate to pass the title. The covenant then not only deprives Thomas of his title as devisee, but it operates to give the other heirs of the testator the same title, that they would have taken had their ancestor died intestate.

■ But the agreement, without more, would not have given the plaintiff a title in severalty to the looms in qtio, and the question, therefore, is whether the division made under the commission issuing from the Orphans’ Court can have that effect. I think it does. The covenant is that the estate shall be equally divided, precisely as if the testator had died intestate. Had he died intestate the division would have been good, and would have given the plaintiff an exclusive title. The agreement, therefore, has been fully executed and the rights of the parties settled in conformity with it. The parties to the agreement raise no objection to it, or to the manner in which it was executed, and we think it clear that a stranger should not be permitted to do so. There is no error in the record and the judgment must be affirmed.