67 Ala. 441 | Ala. | 1880
— All the parties to this suit must be held estopped from disputing Thomas White’s ownership and title of the lands in controversy at the time of his death in 1843. Under the terms of his will, his widow had a life estate in the lands, which she enjoyed. She died in 1863. The will confers power on the executors to sell the land, after the termination of the life estate, for division among the testator’s children, heirs at law. The executors appear not to have acted under this testamentary power, but they obtained from the Probate Court an order to sell the land on twelve months credit, and sold under this order, in the year 1863. Stewart became the purchaser at the price of $4,050, as is shown by a return made to the Probate Court by the executors, setting forth a sale of both personal and real property belonging to the estate. This return is not a report of the sale of the real estate, for it fails to set forth what security, or whether any, was exacted or taken from the purchaser. Its entire language relating to the land .is, “ 1 tract of land, 320 acres, Sw. £ Sec. 16 and Se. | Sec. 17, T. 12, R.-,, to A. O. Stewart, $4,050.” No action was had by the court on this return, except that it was sworn to before the judge of
The present suit is by administrators de bonis non of Thomas White, with the will annexed, and was commenced December 20th, 1875. The defense relied on is the statute of limitations of ten years. Ten years had not elapsed, after the sale and conveyance by the assignee in bankruptcy. Hence, to complete the bar, defendants must date their adversary holding from the sale and conveyance to Stewart. The sale was made in 1863, while the statute of limitations was suspended. It did not commence running until September 21st, 1865. Prom that time till this suit was brought was ten years and three months. The .question, then, is, was Stewart’s or White’s possession adverse, so as to ripen- into a title in ten years ? The conveyances, first to Stewart, and then back to White, being made without report and confirmation of sale — without report that the purchase-money was paid, and Without an order of court to make title, must be treated as if no such conveyances bad been made. — Doe v. Hardy, 52 Ala. 291; McCullough v. Chapman, 38 Ala, 325. Stewart, then, and White after him, stood on no firmer ground than if they had been executory purchasers, without any claim that a conveyance had been made to either of them. They were not adverse holders in that sense, which will ripen into a title in ten years. — McQueen v. Ivey, 36 Ala. 308; Collins v. Johnson, 37 Ala. 304; Taylor v. Dugger, 66 Ala. 444. Several rulings of the Circuit Court are in conflict with these views.
It is urged by appellees that most, or all of the heirs of Thomas White, deceased, were present when the lands were sold to Stewart, and bought property at the sale; and they have received and enjoyed their part of the purchase-money of the land. Whether that defense could be successfully made in. any court against a suit by administrators, would depend on the inquiry whether the lands were wanted for the purposes of administration proper. But such defense cannot avail in a suit at law for lands. It can only be in-
Eor the errors pointed out above, the judgment of the Circuit Court is reversed, and the cause remanded.