55 So. 923 | Ala. | 1911
L. R. Moore, the grandfather of plaintiffs and defendants, executed a deed in the year 1870, conveying the land sued for to his wife, Sarah Moore. The habendum clause of the deed was as follows: “To have and to hold unto said Sarah J. O. Moore, during the term of her natural life, with all the privileges and appurtenances thereto belonging, and at her death all the right, title and property interest therein to vest and descend to our youngest son, John Wheeler Moore, in fee simple. And provided in the event of his death before he arrives at the age of maturity and lawful marriage and before child born, or to he horn, the issue and fruits of said marriage, then further, in consideration of love and affection of my said sons, said lands and tenements are
The record shows that said L. R. Moore died in 1879; his wife, said Sarah Moore, died about 1885; John Wheeler Moore, the youngest son, died in 1906; James Sylvester Moore, the next youngest son, died in 1878; and Charles Moore, the next youngest (and oldest) son, died “prior to the death of John Wheeler Moore”; and Catherine Moore Parr, the daughter named in the deed, died before this suit was begun. John Wheeler Moore died at the age of 40 without bodily heirs, never having married; James Sylvester Moore died without bodily heirs; Charles Moore left surviving him a widow, Flor
The theory of plaintiffs’ counsel is that the several remainder interests limited in the deed are void because (1) the estate of the life tenant — the grantors’ widow— was under the law then in force but an equitable estate,, and therefore incapable of supporting a remainder; or (2) the remainders to vest in James Sylvester Moore, or Charles Moore contingently upon the failure of issue in
1. Under the principles of the common law, an estate in remainder could be supported only by a prior freehold estate. This was due, as Mr. Washburn says, to “that imperative feudal dogma of the common law, that a distinct independent freehold estate in lands cannot be created to commence in futuro.” — 2 Wash. on Real Property (5th Ed.) 582. And the basis of this dogma was that estates could be created only by livery of seisin, which operated strictly in prsasenti.
Doubtless that ceremony as an incident of convey* anees never prevailed in this country at all, being practically abolished by the English statute of uses (St. 27 Henry VIII), which was a part of our common law.— Horton v. Sledge, 29 Ala. 478. But it was formally abolished by the act of December 22, 1812 (Toulmin’s Dig.
The deed now before us created in the wife of the grantor an equitable separate estate, the legal title during her life and his vesting in him as trustee for her. Hence, it would seem that in any vieAv of the case there was a complete divesture of the grantor’s estate and the creation of a prior particular freehold estate technically sufficient to support the remainder in John Wheeler Moore.
2. By the terms of the deed upon the falling in of the widow’s life estate there Avas vested in the youngest son, John Wheeler Moore, an estate, “in fee simple;” but the qualifying clause that immediately folloAvs makes of it in reality a base or terminable fee, since it may be defeated by the death of the taker before arriving at the age of maturity, and without lawful issue.
And the limitations over are not technically contingent remainders, but rather estates in fee upon conditional limitations. — 2. Wash, on Real Prop. (5th Ed.) 590, 591; Horton v. Sledge, 29 Ala. 496. And under these authorities it is clear that the limitations over to the two other sons and the daughter, Catherine, were valid.
But, since it Avas possible, as actually happened, that none of these successive contingent grantees could or would be alive, and also meet and satisfy the condition upon which alone his estate would cease to be terminable and become one in fee simple, either there was left
It not appearing that John Wheeler left a will, we presume that he died intestate, and in that event the location of the ultimate fee, whether in him or his father, is of no practical consequence, since the descent of the land would in either case be the same. We therefore deem it unnecessary to decide this question.
3. Under section 1579, Code 1867 (section 3417, Code 1907), “lands may be conveyed to the wife and children, or children only, severally, suuccessively, and jointly.” The limitations of the present deed are clearly within the terms of the statute, and do not violate the law against perpetuities.
4. It is insisted for the appellees that the children of Charles Moore are entitled, under a proper interpretation of the deed, to the entire estate, just as they would have been had their father survived John Wheeler, and died intestate. Looking to the language of the whole deed, we are unable to approve such, a conclusion. In designating the successive beneficiaries he had in mind, the grantor nowhere uses the alternative “or his chilren,” or “or his lawful heirs.” Indeed, he is explicit in the explanatory clause appended by him to restrict the descent in each case to the next youngest son then alive; and the varying phrases of reference to “heirs or lawful heirs,” or “children,” must be understood as words of limitation, intended only to convey the notion of a contingent fee to the son, and not as words of purchase to
5. It is obvious that Florence Moore, the alleged landlord of Lemuel Perkins, was not his landlord at all; the real landlords being her children, for whom she merely acted as agent in the making of the lease. However, as the object of the statutes (Code, §§ 3840 and 3844) in making a landlord a party defendant is either to bind him by the judgment, or permit him as of right to efficiently defend the suit in propria persona, and as the judgment for possession in fact operates only on the tenant in possession, the intervention of a false landlord in this action could not give the plaintiffs a right to a separate judgment against her, if .Perkins’ possession was rightful; and still less could it entitle them to a judgment against both of them jointly. Hence the issue depended upon the rightfulness of Perkins’ possession.
6. As we have seen, Lemuel Perkins occupied the land as the tenant of the children of Charles Moore, who, we hold, are tenants in common with the plaintiffs. Every defense available to them is equally available to him as their tenant.
It is a fixed principle of the.law of tenancy in common that one tenant cannot maintain ejectment against a co-tenant in possession unless there has been an ouster of the plaintiff by the defendant, or something equivalent thereto, before suit brought. — Jones v. Perkins, 1 Stew. 512; Foster v. Foster, 2 Stew. 356; Philpot v. Bingham,
In Hamby v. Folsom, 148 Ala. 224, 42 South. 549, it is said, per Tyson, J.: “It is undoubtedly the law that, if a person be a part owner, the presumption is that he enters as such part owner, intending, while enforcing his own rights, to respect those of his cotenants, and until by some act of an unequivocal character he indicates that his possession is no longer the possession of his cotenants, as well as himself, he cannot claim to have acquired any rights against them based upon their disseisin. The unequivocal act, however, may be shown by acts and circumstances, and its existence need not be established by direct evidence.”
Whether there has been an ouster or not is generally a question of fact for the jury, and various circumstances may be proved from which the jury will be authorized to infer it. — Hamby v. Folsom, supra; 7 Ency. Pl. & Pr. 319.
The burden is upon him who asserts an ouster by his cotenant to overcome by proof the presumption of a possession friendly to and for the common benefit of all. — 7 Ency. Pl. & Pr. 317, 318.
Where, however,-the defense interposed or any part of it denies the plaintiff’s title entirely, and repudiates the existence of a cotenancy, this is, of course, sufficient evidence of previous ouster, and no demand to be let into possession need be made by the plaintiff upon the defendant before suit brought. — Southern Cotton Oil Co. v. Henshaw, 89 Ala. 448, 7 South. 760.
As remarked in Newell v. Woodruff, 30 Conn. 498, it is “eminently proper and safe, before bringing an action of ejectment against a tenant in common, to test the intent with which the property is holden by a formal demand to be let into the enjoyment of the right claimed;
Nor is there anything in the evidence which can at all support an inference that the possession of Florence Moore, as agent for her children, or of Lemuel Perkins as their tenant, ever became hostile to plaintiffs’ rights, or exclusive of their claims, or ever resulted in an ouster or anything equivalent thereto. In such a state of the evidence, it is manifest-that plaintiffs showed no right to maintain ejectment against the defendants, who held under lease from plaintiffs’ cotenants, and for this reason the trial court properly gave the general affirmative charge for the defendants. The judgment is therefore affirmed.
Affimed.