110 Ala. 640 | Ala. | 1895
Statutory real action by appellees against appellants for 153 acres of land. Plaintiffs claimed as the heirs of Caroline Bishop, who died in May, 1876. The defendants claimed under purchase by Wm. McLeod, in 1891, from D. H. Bishop, who was the husband of said Caroline, and who died during that year, or the next, having executed a conveyanco to McLeod. There was evidence tending to show that Shepherd M. Streater, who was the father of said Caroline, was in possession of the land from 1836 to T852 or 53, when said D. H. Bishop and his wife, said Caroline, moved on the land whereon they continued .to reside together, until the death of Caroline in 1876 ; and thereafter he continued to reside thereon, exercising the usual acts of ownership of an absolute owner, until his death, though he had sometime before, as stated, conveyed to McLeod. It is not questioned by either party that the title of Streater was divested by the possessions. The ques-' tions for trial were, to whom should the possession be referred, during the occupancy of the husband and wife? and what was the legal character of the husband’s possession after the death of the wife, until he sold to McLeod? A witness for plaintiffs testified that “in 1856 and 7, before and after that time, he heard D. H. Bishop say that said land belonged to his wife.” The plaintiffs then asked the witness, if he heard said Caroline, while she was residing together with her husband on the land, make any declarations to the effect that her father had given said lands to her? The question was objected to on the grounds, that it sought to prove by parol evidence a gift of land; and that the declaration was not
The court, on objection of plaintiffs, refused to permit a witness for defendants to testify that D. H. Bishop had been in the uninterrupted possession of the land in controversy for twenty-five years, or more, before he deeded it to McLeod, living on it and cultivating it; that said Bishop’s homestead upon which he and his wife resided together until her death consisted of a bo,dy of 160 acres; that witness bought eight acres from him ten or twelve years ago, and that the balance of the 160 acres is the land in controversy; that witness’ bought the eight acres and received a deed . from D. H. Bishop after the death of said Caroline, and while D. H. Bishop was in possession and claiming the whole of said 160 acres.' It is clear, as we have said, that the governing question in the cause is whether the occupation of the land by Mr. and Mrs. Bishop was in his or her right. If they went upon it as her property — the husband recognizing it as hers, asserting no exclusive claim as his own — he could not thereafter, during her life or after ■ her death, set up an adverse claim in his own right. Going into the possession of the land as hers, and for her, the husband’s statutory trusteeship of the wife attached, with its attendant duties, and no use or disposition he might make would impair her right. Or, leaving the statute out of view, he became tenant by the courtesy initiate, and could set up no efficacious adverse claim in his own be
The affidavit made by D. H. Bishop when he conveyed to McLeod was clearly inadmissible.
Equitable estoppels cannot be setup in real actions at law.
The charges requested by the defendants were properly refused.
For the errors mentioned, the judgment must be reversed, and the cause remanded.
Reversed and remanded.