52 So. 420 | Ala. | 1910
John W. McAlpine filed his bill to quiet title to certain lands in the county of Mobile against Cary W. Butt et al. The respondents, those with whom we are concerned, propounded, by answer, their claim to the land and, also, constituted their answer a cross-bill by which it was prayed that their title to the lands be vindicated and quieted, as against original complaint. The court below sustained'the title of original complainant, and declared the cross-complainants to be without right or title to, or interest or claim in, the lands in question.
On December 5, 1846, Franklin O. Heard owned the real estate in controversy. Being unable, at that time, to discharge his just debts, Heard executed to James Elder and Benjamin M. Woolsey a general assignment of all his property for the benefit of his creditors. The consideration of the conveyance to Elder and Woolsey is recited therein to have been the “premises” we have indicated and a “just distribution of his (Heard’s) estate and effects among his creditors as also of the sum of $5.00 to him (Heard) in hand paid by the said James Elder and B. M. Woolsey, the receipt whereof is hereby acknowledged(Italics supplied.) The conveyance, by express reservation, excepted from its operation the properties settled upon Emily W. Woolsey, who subsequently became the grantor’s wife.
The general declaration of trust proceeds along the usual lines of such instruments. The specific directions for the application of the trust funds coming into the hands of Elder and Woolsey may be thus summarily stated: First. To retain and reimburse themselves for expenditures and expenses incurred in the creation and
The title or rights asserted by the respondents (appellants) rest upon their being heirs at law of Franklin C. Heard, the grantor in the general assignment described. And the doctrine upon which they rely to sustain their asserted title or rights is, to state it generally, that where a trust of the character under consideration is created, and the trust is closed, the grantor or his successor in title or right is entitled to the surplus of the funds, or unconverted, corpus of the originally created trust estate, remaining after the satisfaction of the purposes of the trust; and, if a great period of time elapses after the time the money was demandable by the beneficiaries of the trust, viz., the creditor or creditors, a presumption of payment of the debts, or satisfying arrangement with the creditors, will be indulged, to the
' The complainant grounds his claim to title to the real estate in question upon an unbroken chain of record title extending over a period of more than 40 years; but the absent link, back of that period, is that no deed from Elder and Woolsey is shown to have been, in fact, executed. The issue of adverse possession vel non, by those from whom complainant deduces his asserted title, is controverted in the evidence; but in view of the cause prevailing with us that issue cannot control the conclusion here.
The complainant, assailing the basis of the appellant’s assertion of title or right to this real estate, invokes the rule of repose implied in the doctrine of laches, or upon the presumption arising after 20 years 'or more of inactivity in assertion of the right claimed, and upon this the further insistence that the grantor’s interest, or that of his successor in right, in unconverted, after discharge of all debts of the grantor, corpus of the trust estate, was, at most, a resulting trust, and not a legal or equitable estate therein.
The respective contentions may have suffered, in force and breadth of statement, as the result of our effort to condense; but the general reason and effect of each insistence is at least indicated.
The decree.below must be affirmed; and so in consequence of the application of well-recognized doctrine to the status presented by this record. That result may be justifiable upon other grounds; but it will suffice for present purposes of complete decision of this litigation, determining the rights vel non of the parties, to set down the reasons controlling, and on which we rest our conclusion in affirmance of the decree now assailed.
If the recitals of the conveyance do not thwart the creation by operation of law of a resulting trust in the surplus over the sum employed to satisfy the debts of the grantor, or in the unconverted corpus, in whole or in part, of the trust estate, then in either or both the law creates the character of implied trust, viz., resulting in the grantor, in such surplus or unconverted part of the whole. — 4 Cyc. p. 284, and authorities cited in note 26. In the very nature of things such an implied .trust, to one’s advantage, is an equity only — Nettles v. Nettles, 67 Ala. 599; Tilford v. Torrey, 53 Ala. 120.
This trust was created in 1846; and if to this we arbitrarily add 24 years, bringing the time up to 1870, and apply to that status the-presumption of satisfaction of the purposes of the trust after the elapsing of so great a period, and further assume that the land in question was unconverted in the payment of the debts of the grantor, the appellants were then (1870), we grant for the argument only, entitled to resulting trust therein. From 1870 — 24 years after the creation of the trust and' substantially a like period after the money was demandable by the creditors (In re estate of Potter and Page, 54 Pa. 465) — up to the filing of the bill in this cause, nearly 40 years had elapsed without any assertion by appellants, or their predecessors in right, of the resulting trust in these lands. In the meantime the
The basis and hope of the doctrine is repose — repose in titles bona fide claimed and repose against litigation, to resist which the passing of so great a period as 20 years is well anticipated to operate to the uninvited prejudice of those called upon, at that late day, to defend.
But it is urged for appellants that there was no such possession of the land in question as effected to bring notice of adverse claim to their trust. That argument might have force if the reliance of appellants was a character of title drawing to it constructive possession.
If it should be ruled that only actual possession, in whole or in part under color of title extending such partial possession to the whole, not otherwise actually adversely possessed, would operate to impose the duty on the beneficiary of a resulting trust to act, if he would avoid the presumption arising from inactivity for 20 years or more, in assertion of his mere equity, the result would be to create the anomaly of relieving the beneficiary of the application of the presumption on a con
In that instance, no act is required, in the absence of fraud or deception, to put into operation the running of the period, which, when completed, concludes against such right; and this, we apprehend, is due to the fact that on the mortgagee out of possession rests the obligation to become the actor in the enforcement of his rights.
That original complainant and those through whom he claims, reaching back for more than a third of a century, are and were claimants in good faith of the title to these lands, appears without doubt. Covering
No fraud or deception appears to have been practiced by these consecutive claimants; nor, on the other hand, is any semblance of excuse offered or suggested for such complete, long-continued inactivity on the part of the-beneficiaries of the trust running to them.
To conclude, on this theory of the case, we hold that such inactivity, without justification of excuse, closes the-courts to the enforcement of the equity of appellants, in these lands, they or their predecessors in right not having been in possession of the land; and so, whether original complainant and his predecessors in bona fideclaim of title were in actual possession of the land, in whole or in part.
The decree is therefore affirmed.
Affirmed.