29 Ala. 478 | Ala. | 1856
We thinlr the chancellor erred in rendering a decree for a partition of the lands. Both George Horton and George H. Horton deny thatunder the deed of William Lanier any title could pass to the complainant, and that complainant’s birth was anterior to the death of Thomas A. Sledge. The former of those, two denials is the controversy of a pure and naked question of law. The latter is the controversy of a question of fact. In the case of Delony v. Walker, 9 Porter, 498, this court decided, without the previ
But in this case the defendant denies the fact, that complainant was born before Thomas A. Sledge died. Upon the question raised by this denial, the defendant was entitled to a jury trial; and the law, as recognized in the books, forbids that the chancellor shall proceed to make partition without a trial at law, when the complainant’s title is legal, and controverted upon such a ground. Indeed, the decision in .De-lony v. Walker, rests upon the reason given for it, and the manifest convenience and propriety of the rule laid down, rather than upon its entire consistence with all the authorities. The complainant’s title is legal, and the fact upon which it depends is denied; and that title ought to have been subjected to a trial at law, before a decree for partition was rendered. We think the correct practice in such a case is, to stay proceedings until a trial can be had at law. If the practice should be to dismiss partition suits upon the denial of the complainant’s title, the rights of parties bringing such suits would be at the mercy of an unscrupulous respondent. The authorities are generally in favor of retaining the bill, and delaying the suit until a trial can be had at law. — Delony v. Walker, supra; Wilkin v. Wilkin, 1 Johns. Ch. R. 111 ; Phelps v. Green, 3 ib. 305 ; Straughan v. Wright, 4 Rand.
The appellants assign for error in this court the refusal of the chancellor to sustain the demurrers contained in the answers. The grounds of demurrer are, the misjoinder of the parties defendants, multifariousness, and want of equity in the bill. The first two objections, so far as they concern George and George IT. Horton, are both determined by ascertaining whether the causes of action against those two defendants can be joined. If they can, the bill is not multifarious ; nor is there a misjoinder oí parties, as to them.
In our opinion, the bill is not multifarious. In the account for rents, the defendants are both interested. In the partition of the land, George Horton has no direct and immediate interest, but he has an indirect interest in it. If the complainant has a right to partition, she will be entitled also to an account for rent against her tenant in common. The defendant, George Horton, held for the tenant in common, and for the persons who may be entitled to the other undivided
We now proceed to consider the question of the equity of the bill raised by the demurrer. The decision of that question turns upon the construction of the deed of William La-nier. If the complainant has any title, it is derived from it.
The deed conveys a fee in a moiety of the land to Thomas A. Sledge ; and in the event of his death before his majority, to his brothers and sisters in fee ; and if he leaves no brothers, to George H. Horton. Under the old common law, the limitation over to the brothers and sisters after the death of Thomas A. Sledge, during minority, would not be a good remainder. A remainder could not be limited upon a contingency, which would abridge or defeat the particular estate ;and afee could not be limited on a fee, or, in the language of some of the books, a fee could not be mounted on a fee. — Eearno on Remainders, § 3, p. 10 to 20 ; ib. p. 313, 271, §7, 261, 248, 390, 391, 392 ; 2 Thomas’s Coke, first American from the last Lon
The authorities are also clear that, in conveyances under the statute of uses, a conditional limitation (which is the denomination of a limitation over to take effect in abridgment of the particular estate) may be created, and that a fee may be limited on a fee determinable on condition. — See authorities above ; Note 20 to p. 175, 2 vol. Wendell’s edition of Blackstone ; 4 Kent’s Commentaries, 249, 250 ; Simmons v. Augustin, 3 Porter, 69.
The English statute of uses was enacted “ before the emigration of our ancestors to America; is applicable to our situation, and not inconsistent with our institutions and government ; and has been generally recognized and acted upon by the courts of this country, and therefore constitutes a part of the common law” of Alabama, and is in force unless repealed. Carter and Wife v. Balfour’s Adm’r, 19 Ala. 829 ; Simmons v. Augustin, supra. Besides, our own statute is strikingly similar, and perhaps in effect the same, with the English statute. — Simmons v. Augustin, supra.
The deed appears upon its face to have been made upon consideration of natural love and affection for the grantees, who are the grantor’s great grand-children, and of five dollars paid. The words of conveyance are, “give, grant, bargain, sell, alien, enfeoff and convey.” It is disputed by the counsel for appellants, that a deed upon such a consideration, with such words of conveyance, can be deemed a conveyance under the statute of uses. In Greenleaf’s Cruise on Beal Property, 140,'§ 10, the law is thus laid down : “ If a man, in consideration of natural love and affection, and of money, gives, grants, bargains, sells, enfeoffs and confirms to B. in fee, by deed indented, with a letter of attorney in the deed to make livery, and the deed is after enrolled in six months ; this shall pass as a bargain and sale, notwithstanding the letter of attorney in the deed. For the feoffor has given the feoffee an election to execute the estate one way or the other, and that way which first executes the estate shall stand.” In 2 Lomax’s Digest, 192, it is said : “ When a deed may enure in different ways, the person to whom it is made may have his election
It is true, as contended by the counsel for the appellants, that to sustain conveyances to uses there must be a person
From what is said above it follows, that upon the facts stated in complainant’s bill, she has a title to an undivided moiety of the land in litigation, and that the bill contains equity.
The demurrer on the ground that Washington and Sally Sledge are made parties defendants, was properly overruled. They were unnecesary and improper parties, because they had no interest in the suit; but it is an objection of which the other defendants cannot avail themselves. — Story’s Eq. Pl. § 544 ; ib. 264, § 287 ; Hunley v. Hunley, 15 Ala. 91 ; Toulmin v. Hamilton, 7 Ala. 370 ; Erwin v. Ferguson, 5 Ala. 158.
Here we might close this opinion; but as the case must be remanded, and as the question of George Horton’s right to compensation for permanent and valuable improvements may again arise in the further progress of the case, we deem it proper to lay down the legal principles, which we think ought to govern the court below in its action upon that subject. George Horton can in no event be entitled to compensation for improvements made beyond the rents charged against him ; nor can he be entitled to compensation for any improvements, unless made at a time when he really and bona fide believed himself to be the true owner of the land, and unless he was induced to make those improvements by that belief really entertained. He will not be entitled to any compensa- • tion for improvements, if made when he knew his title was
We lay down the above principles, upon the assumption that no improvements were made before the death of Thomas A. Sledge. We are not at all certain from the record that the defendant intends to claim any improvements to have been made before that*time ; and we do not intend to express any opinion as to whether George Horton may be entitled to compensation for such improvements, and if he made them, what would be the measure of that compensation. We deem it proper to add, lest we might be misunderstood, that Apples Sledge would only be chargeable with one half of any improvements made by George Horton. The charge for the other half of such improvements must be a matter to be settled between him and George H. Horton.
The decree of the chancellor is reversed, and the cause remanded for further proceedings in accordance with the principles laid down in the foregoing opinion.
George Horton, who filed the cross-bill, was entitled to no relief upon the facts alleged. It is contended, in the first place, that Apples Sledge must be compelled to elect, whether she will take the negro conveyed to her by her father, or the rents due by George Horton to her. Conceding that an election could be forced upon an infant, the doctrine has no application here. The contract for the purchase of the land of Apples Sledge from her father by the appellee has been rescinded ; and by the contract of rescission it was agreed,
The argument that George Horton is entitled to be subro-gated, or substituted, to the right of Apples Sledge to the negro, is obnoxious to several objections ; but we shall notice only one, which seems fatal to it. The deed of her father conveys to Apples'Sledge the negro, and her increase, subject to the condition, that the property is to remain with the grantor until the grantee shall attain the age of 18 years ;
This court has no right to convert an absolute conveyance in payment of an obligation to one person, into a mere security for the debt of another.
For the reasons above stated, we think the cross-bill does not make out a case for any relief for the complainant; and therefore the decree of the' chancellor is reversed, and a decree must be here rendered, dismissing the said cross-bill, and the appellee must pay the costs of this court, and of the court below.