Lead Opinion
This is an action of ejectment brought by the lessor of the plaintiff, to recover the one-fifth of a certain tract of land, devised by George Broach to his wife during life, with remainder to his children. John Broach, one- of the testator’s children, died, leaving a widow his sole heir, with whom the lessor of the plaintiff intermarried, and who now seeks to recover the possession of the one-fifth of the premises in dispute, as one of the remainder-men under the will' of George Broach.
It appears from the record, that on the 3d day of April, 1852, Rachel Broach, as the executrix of George Broach, who had a life estate in the land under the will, sold the land at private sale, under an order from the Court of Ordinary for that purpose, to Alexander H. Broach, one of the remainder-men under the will, for the sum of two thousand dollars, conveying to the purchaser the entire fee simple estate in the land. Upon this statement of facts, the legal presumption is, that the remainder-men under the will, received from the executrix their pro rata share of the proceeds of the sale of the land in the due course of administration, and have not therefore, a very strong equitable claim now to recover their share of the land. Their legal rights, however, must be determined under the law as it existed in this State at the time the deed was made by Rachel Broach, conveying the entire estate in the land to Alexander H. Broach.
The defendant, who claims title and possession of the land under Alexander IT. Broach as a purchaser of the entire interest therein, pleads the statute of limitations as a bar to the plaintiff’s right to recover possession of the land from him. At what period of time did the statute of limitations commence to run against the remainder-men? Did the statute commence to run from the time Alexander H. Broach went into the possession of the land under his purchase from the executrix of George Broach, or did the statute commence to run only from the time of the death of Rachel Broach ? This is the question to be decided in this ease.
Although the reason of the common law does not apply with the same force in this country as it did in England, in favor of the forfeiture of the life estate of the tenant, when he aliens the land by conveying a greater estate therein than by law he is entitled to do, thereby diverting the remainder or reversion from him who is entitled thereto, and renouncing his fidelity to his feudal lord; yet the living principles of the common law are applicable here. The testator in this case made the tenant-for-life his confidential friend, trusted to her fidelity to hold the land during her life for the remainder-men, and her act, conveying a greater estate than she had in the land, was a breach of trust, an open renunciation of her fidelity to him under whom she held and derived her title.
Had this conveyance been made by the tenant-for-life to all the remainder-men jointly, instead of to one of them to the exclusion of the others, a different question might have been presented, in regard to which we express no opinion. The conveyance of-the entire estate to one of the remainder-men to the exclusion of the others, was as much a breach of her fidelity to those excluded, as if the conveyance had been made to an entire stranger, and quite as prejudicial to their interest as such remainder-men.
The 2242 section of the Code is relied on, which declares that “Ho forfeiture shall result from a tenant-for-life selling the entire estate in, lands: the purchaser acquires only his interest.” The reply is, that the conveyance of the tenant-for-life in this case, was made before the adoption of the Code by the Legislature. The case of Parker vs. Chambliss, (12th Ga. Rep., 235,) is also relied on by the plaintiff in error. In that case, the only question involved and considered by the Court was, whether a tenant-in-dower, by committing waste,
But it is contended, (and there are to be found decisions in the books to that effect,) that although the remainder-men might have entered immediately upon the forfeiture of the life estate, yet they were not bound to do so until the death of the tenant-for-life, and therefore the statute of limitations did not commence to run against them until her death.
After forfeiture of her life estate by the sale of the land and the abandonment of the possession thereof to the purchaser, what interest had she in the land during her life, that would prevent the entry of the remainder-men thereon at any time, or prevent the running of the statute of limitations against their right of entry during her life ? Upon principle, what has her life or death to do with the right of entry by the remainder-men after her life estate in the land is forfeited, and ceased to have any existence either in law or fact, — the more especially when they had/wS knowledge of the forfeiture. Why should not the remainder-men be required to prosecute their writ of formedon in remainder, or the modern substitute for it, the writ of ejectment, within the time required by the statute ?
In view of the facts of this case when applied to our own statute of limitations, and the construction which has been given thereto both by the Courts and the Legislature, we think that the statute did commence to run against the remainder-men from the time their right of entry on the land accrued to them. The 2637th Section of the Code declares that, “Title by prescription is the right which a possessor acquires to property by reason of the continuance of his possession for a period of time fixed by the laws.” The 2642d Section of the Code declares that, “Adverse possession of lands under written evidence of title for seven years, shall give a title by prescription.”
In Watkins vs. Woolfolk (5th Ga. Rep., 261) this Court held that the statute of limitations in this State, not only
The conclusion of the majority of the Court, therefore, is that the statute of limitations commenced to run against the plaintiff in error as one of the remainder-men, from the time of the sale by Eachel Broach of the entire interest in the land, in favor of the purchaser who went into possession under that sale, and those claiming uuder him by color of paper title, and that the deeds set out in the record, furnish sufficient evidence of color of title, to enable the defendant to protect his possession under the statute of limitations; and that there was no error in the Court below in refusing to charge "the jury as requested, or in the charge as given. Therefore let the judgment of the Court below be affirmed.
Dissenting Opinion
dissenting.
In this case I have the misfortune to differ with my associates. I have the satisfaction, however, of knowing that this difference of opinion can affect only cases growing out of transactions prior to the adoption of the Code. By Section 2242 it is provided that “ no forfeiture shall result from a tenant-for-life selling the entire estate in lands; the purchaser acquires only his interest.” I think this is but a legislative declaration of what was already the law.
The position maintained by the majority, as I understand it, is that the attempted sale by Mrs. Broach of the fee forfeited the life-estate to the remaindermen, and that the possession of Hamilton Broach, from the date of his purchase in 1852, was adverse to the title of the other remaindermen; in other words, that the sale not only forfeited the life-estate, but the remaindermen were bound to assert their rights accruing by reason of the forfeiture, or endanger their title in remainder.
1. It is true that at common law a life-tenant might, by feoffment, fine, or common recovery, forfeit his estate to him in remainder; because such alienation amounted to a renunciation of the feudal connection and dependence, and tended to devest the remainder expectant. Another reason given was that the life-tenant, by granting a larger estate than his own, put an end to his own original interest, and the next taker was entitled to enter regularly, as in his remainder or reversion. 2 Bl. Com., 274-5.
2. But in a note it is said that a conveyance by lease and re-lease, or bargain and sale, does not work a forfeiture. Ib., Note (16). This note, as I think, is sustained by the common law authorities. Feoffments, fines, and common recoveri es, operated “ by way of transmutation of possession;” while a bargain and sale is a contract by which a person conveys his lands to another for a pecuniary consideration; in consequence of which an use arises to the bargainee, and the statute (of uses) immediately transfers the legal estate and possession to the bargainee, without any entry or other act on his part. 2
I am aware that some cases seem to decide that a bargain and sale with a general warranty of title may produce a discontinuance, and perhaps a forfeiture. Stevens vs. Winship, 1 Pick. Rep., 327; McKee vs. Plant, 3 Dall., 486; 3 Thomas’s Co. Litt., 93, Note (A); ib., 125. Without admitting the truth of this position, a sufficient reply is, that the deed from Mrs. Broach to Hamilton Broach does not contain a general warranty. It warrants the title “ so far as her office of executrix will authorize her, against all claims whatsoever, and not to be liable only in her representative character as executrix.” In the case of Aven vs. Beckam, 11 Ga. Rep., 1, where the doctrine of the liability of an administrator was carried so far that the Legislature in a year or two after-wards changed the rule there laid down, the Court says (p. 8): “ If the administrator, in explicit terms, stipulates that he shall not be bound, the other party would be also bound by the stipulation; and the warranty, binding neither the estate nor the administrator, would be a mere nullity.” Here is an express stipulation against personal, individual liability. Ho stress was laid upon this point in the argument — it was not insisted that the question of warranty had anything to do with the case. The whole of the brief of Colonel Poe, for defendant in error, on this point, was this: “The plaintiff is barred by the stdute of limitations. The deed of Rachel Broach was made in 1852 to A. H. Broach, and he and defendant have had open and notorious possession ever since. The deed constitutes color of title, even though the vendor had only a life estate, and her authority to sell was only by virtue of the devise of a life estate. For as her deed con
3. Suppose I am wrong in this, and that a bargain and sale of the fee did at common law forfeit the life-estate, still I insist, that such was not the law in Georgia. By our adopting act, (Cobb’s N. D., 721,) we adopted such of the common law of England and such of the statute laws as were usually in force in the province on the 14th day of May, 1776, and were properly adapted to the circumstances of the inhabitants. The reason of the. old law of forfeiture for alienation never existed in this country, the law was not adapted to the circumstances of our people. Feoffment with living at common law, and fine and common recovery, so far as I know, were never used in this State as modes of conveyance. The modes of conveyance, most in use, and of which our statutes speak, are ‘bargain and sale and lease and release; and I am not aware that an alienation of the fee, by a life-tenant, by either of these modes of conveyance, has ever been held to be a forfeiture in Georgia, until the present time. I think the authorities already cited sufficient to show ■that the whole doctrine of forfeiture by alienation of a greater estate than the grantor possesses, is inapplicable to the condition of our people, and is not a part of our law.
4. Suppose, however, that I am wrong in this position also, and that a bargain ánd sale of the fee may work, in this State, a forfeiture of the life-estate; will the possession of the purchaser from the life-tenant be adverse to the title of the remainderman ? I think not. My position is, that if. there be a forfeiture of the life-estate, to the remainderman, by alienation, that he in remainder then has two titles, and may enforce either at'his option. He may at once proceed and recover on his title by forfeiture; or, he may waive that title, and on the death of the tenant-for-life, assert his title in remainder. The possession of the purchaser may be adverse, as against the title by forfeiture, without affecting in
If, as I have endeavox*ed to show, a bargain and sale of
The record shows that plaintiff’s counsel requested the Court to charge, that the sale by Mrs. Broach did not forfeit her life-estate; and defendant’s counsel requested him to charge that it did. Forfeiture or non-forfeiture was the issue; for, without a forfeiture, there could be no sort of ground for insisting that the possession of the purchaser from the life-tenant was hostile to the title of the remainderman.
The other question made by this record, viz: whether the title passed by virtue of the sale, made by order of the Ordinary, authorizing a private sale, was not considered by the Court; and therefore it would be improper for me to express an opinion upon this point. To my mind, this was the real question in this case, but a decision upon it was rendered unnecessary by the views entertained by the majority upon the question of the statute of limitations. For the reasons given, I dissent from the judgment rendered in this case.