47 So. 214 | Ala. | 1908
— The equity of the bill in this cause was determined on former appeal. — Rutledge v. Cram-ton, 150 Ala. 275, 43 South. 822. It was then held that the partition proceedings in the probate court for the sale of the land here in controversy, upon the petition of Mrs. Bell, who took a life estate under the will of her husband, and to whom was committed the authorization “to sell and dispose of such portions of my (testator’s) estate as she may think best, either- at public or private sale and upon such terms as she may deem advisable,” was not an execution of the power conferred by the will. The holding seems to have been predicated upon certain statutes. Independent of and aside from these statutes, the conclusion reached was clearly correct, for the obvious reason that the power conferred reposed in Mrs. Bell a personal trust and confidence to exercise her own judgment or discretion, which could be discharged only by
In the leading case of Bulteel v. Abinger, 6 Jur. 412, one of the trustees declined to take any part in the sale of the trust property, other than to authorize his co-trustee to sell the estate under their powers. A sale was effected by this co-trustee accordingly, and on a bill for specific performance, brought by the vendee, it was held, first, that the fact of the trustees being also executors did not give each trustee, qua trustee, authority to deal exclusively with the property; and, second, that Lord Abinger could not lawfully delegate to his co-trustee an authority to sell the estate of his son, without reserving to himself a veto on the contract. In Hill on Trustees, p. 474, it is held that a trustee is not justified in delegating the power of sale to a stranger, nor even to a co-trustee. In Hawley v. James, 5 Paige (N. Y.) 487, the principle is thus .stated: “A trustee who has only a delegated discretionary power cannot give general authority to another to execute the same, unless he is specially authorized so to do by the deed or will creating such power.” And in Pearson v. Jamison, 1 McLean, 197, Fed. Cas. No. 10-879, it is held: “Where an executor by
But, Should we concede that Mrs. Bell could have delegated her power to sell the land to the probate court, it is not made to appear that it was her intention to execute the power by and through the partition proceeding had therein. The petition filed by her jointly with another nowhere refers to the power. That she owned a life estate in the land cannot be denied; a,nd that she had the right, as owner of such an estate, to have the land sold for division, does not seem to have ever been
There is no pretense that the remaindermen, from whom the complainants claimed to have derived title, were parties to the partition proceeding. Indeed, the record of that proceeding shows that they were not, and clearly, in order to sell their estate in the land, it was necessary that they should have been parties. —Gayle v. Johnston, 80 Ala. 395; Fitts v. Craddock, 144 Ala. 437, 39 South. 506, 113 Am. St. Rep. 53; McQueen v.
By the fifth plea the defense of adverse possession for ten years is attempted to be invoked, to defeat the complainants’ title. This defense is expressly predicated upon the facts alleged in the fourth plea, with respect to the possession of Cramton and those through whom he claims. With respect to the possession of those persons, as owners of the life estate of Mrs. Bell, in this jurisdiction, it is not possible for that possession to have become adverse until after her death, for the obvious reason that the right of the remaindermen to enter, or to sue for the establishment or recovery of their interest, never arose until after her death. —Edwards v. Bender, 121 Ala. 77, 25 South. 1010, and cases there cited; Washington v. Norwood, 128 Ala. 390, 391 30 South. 405; Bolen v. Hoven, 143 Ala. 625, 39 South. 379; Hinton v. Farmer, 148 Ala. 211, 42 South. 563. As to their possession as tenants in common, it is prima facie presumed to be thfe possession of all, and could never become adverse to the complainants and those through whom they derived title, unless there was an actual ous
That portion of plea 7 which attempts to defeat the right of T. J. Rutledge, because at the time he acquired his interest in the land the respondent was in the actual and exclusive possession of it, is insufficient, for the reason above stated, and for the additional reason that, if the averment as to possession could, by any sort of construction, be held to have been adverse — which it cannot — the principle which makes conveyances of lands Amid if executed Avhen a third person is in the adverse possession of them, has no application where, as here, the interest or estate is acquired by devolution under the statutes. The reason for holding conveyances Amid under such circumstances is to prevent maintenance and champerty. The other1 defense attempted to be asserted by this plea is not sufficiently stated, for the reason assigned with respect to the insufficiency of plea 5.
Plea 6 is fonnded upon the same facts set out in the fourth plea, and attempts to invoke an estoppel against the complainant T. J. Rut-ledge. Its sufficiency does not seem to be insisted on in brief of appellant’s counsel. But, if insistence were made, the plea is clearly bad. Not a single element of estoppel' is averred.
The ninth paragraph: of the answer was not made a plea, as seems to be supposed by appellant’s counsel.
Finding no error in the record, the decree appealed from must be affirmed.
Affirmed.