Greenwood v. Coleman, 34 Ala. 150

Greenwood v. Coleman

34 Ala. 150 | Ala. | 1859

A. J. WALKER, C. J.

The deed of Sam’l Greenwood, uuder which the complainant claims, was valid against Mm, notwithstanding it may have been made with a fraudulent intent. — Wiley, Banks & Co. v. Knight, 27 Ala. 336; Walton v. Bonham, 24 Ala. 513; Rochelle v. Harrison, 8 Porter, 351.

[2.] The decisions of this court settle the construction of the deed, and give it the effect of creating a life estate in Mrs. Greenwood, with a remainder to her children living at her death. — Elmore v. Mustin, 28 Ala. 369; McVay v. Ijams, 27 Ala. 238; Couch v. Anderson, 26 Ala. Rep. 676; McWilliams v. Ramsey, 23 Ala. 813; Williams v. Mason, 23 Ala. 488.

[3-4.] By virtue of the deed, the complainant is entitled to an undivided half of the negroes covered by it, with their subsequent increase, unless her right is barred by the statute of limitations. The statute of limitations effected no bar in the life-time of Mrs. Greenwood. Six years from the execution of the deed had not elapsed when she died; and besides, the answer sots up no adverse possession until 1843, in which year she died. Upon the death of Mrs. Greenwood, in 1843, the trust terminated, and the legal title vested in her two children, the complainant and- Leonora Greenwood. The deed in this case is materially different from that which was construed in Bryan and Wife v. Weems, 29 Ala. 423. *154That deed expressly continued the trust after the death of the first taker. The trustee was clothed with a trust for the remainder-men, as well as the beneficiary of the antecedent estate. Here, the trust, by the terms of the deed, does not extend beyond the death of Mrs. Greenwood. The property is conveyed to the trustee, to have and hold in trust for the use “ of the said Elizabeth B. B. Greenwood during the term of her natural life, and at her death to descend to her children, if any should survive her; and in case there be no child or children, then the above property, or such portion of it as may be undis-posed of, to descend to, and be a part-of the estate of the said Samuel Greenwood.” It is most clear, that the words of the deed do not vest the remainder in the trustee; and there was no purpose to be accomplished by a longer continuance of the trust. For these reasons, and upon the authorities which we cite below, we decide, that the two children of Mrs. Greenwood took a legal title to the slaves, free from any trust. — Smith v. Ruddle, 15 Ala. 28; Comby v. McMichael, 19 Ala. 747. It follows, that an adverse possession after the death of Mrs. Greenwood is not available to the defendant, upon the ground that the legal title in remainder was vested in an adult trustee. The complainant having been an infant when her fight accrued, the statute of limitations could not bar it, because this suit was commenced within three years after her majority. — Code, § 2486.

[5.] The act of 1850 authorizes the conveyance of a married woman’s statutory separate estate, by joint deed of husband and wife. The wife’s consent is requisite to the con voy unce. She must be a party to the contract, and one of the makers of it. Upon universally accepted principles of law, she cannot give her consent to the contract during her infancy. If she were a feme sole, she could not make a deed which she could not avoid. ' It is inconceivable that it was designed to confer upon her, when under coverture, an authority to contract which did not pertain to her if sole and unmarried, and to dispense with the disability of infancy. — Pool v. Mix, 17 Wend. 119; Sanford v. McLean, 3 Paige, 117. We *155decide, therefore, that the release of Mrs. Coleman and her husband, made during the infancy of the former, was voidable. The bill in this case was an appropriate mode of avoiding it; and the application is made in a reasonable time, all the circumstances of the case being considered.

[6.] In the case' of Alston v. Alston, at the present term, we had occasion to consider the question of the allowance to a parent, out of his child’s independent estate, for the maintenance and education of the child. Upon the principles settled in that ease, we think the chancellor should have referred it to the register, tó ascertain whether the father was able to maintain and educate his daughter, in a manner corresponding with her independent fortune; and, if he was not, should allow him to retain out of the income of such independent estate such sums.as may have been expended in the bestowment of a maintenance and education corresponding with such fortune.

For the error of the decree in reference to this last particular, it is reversed, and the cause remanded.