65 So. 49 | Ala. | 1914
— Under section 4283 of the Code, providing that “any defendant in a suit for forcible entry and detainer or unlawful entry and detainer may remove such action” from the justice to the circuit court, and requiring, to that end, that “the defendant desiring to remove such case shall file a sworn petition” to a judge of some court of record, it is not necessary for all of several defendants to sign and make oath to the petition. It is sufficient if the petition shows the facts required, and their verity is attested by the oath of any defendant.
It clearly appears from the removal proceedings, including the bond, notice, and final order, that both of
The whole course of the trial and the judgment itself show that the issue was upon the title, as in ejectment, and we would be impelled to SO' regard it here.—Fearn v. Beirne, 129 Ala. 435, 441, 29 South. 558.
Manifestly the decisive question in the case is whether the instrument executed by Abigail Phillips to Eli J. Phillips in 1866 was a contemporaneous conveyance of the land, or was purely postumous in its operation; in short, whether it was a deed or a will. Courts have undertaken in innumerable cases to prescribe the general tests by which the character of an instrument in this regard is to be determined; but, while there seems to be a substantial uniformity of opinion as to the general principles to be applied, the cases themselves exhibit the utmost contrariety in the particular conclusions reached, even in the same jurisdictions. Nothing of value can be added to what has already been written by the most eminent jurists and commentators. The following decisions of this court discuss and illustrate the question: Adams v. Broughton, 13 Ala. 731; Golding v. Golding, 24 Ala. 122; Elmore v. Mustin, 28 Ala. 309; Gregory v. Walker, 38 Ala. 26; Gillham v. Mustin, 42 Ala. 365; McGuire v. President and Directors’ Bank of Mobile, 42 Ala. 589; Daniel v. Hill, 52 Ala. 430; Jordan v. Jordan, 65 Ala. 301; Trawick v. Davis, 85 Ala. 342, 5 South. 83; Sharp v. Hall, 86 Ala. 110, 5 South. 497, 11 Am. St. Rep. 28; Griffith v. Marsh, 86 Ala. 302, 5 South. 569; Crocker v. Smith, 94 Ala. 295, 10 South. 258, 16 L. R. A. 576; Kelly v. Richardson, 100 Ala. 584,
The deed here in question is in form a present grant of the land. It was acknowledged, delivered, and recorded within 15 days after the recited date of its execution. That it was the grantor’s intention to thereby effect a contemporaneous transfer of title to the grantee seems reasonably certain, and the concluding sentence, “This deed is not to take [effect] until after my death,” was clearly but a clumsy and inartificial mode of reserving to the grantor the possession and enjoyment of the land so long as she might live.
We therefore hold that the instrument was a deed which conveyed the title to Elijah J. Phillips, subject to a life estate reserved to the grantor. This conclusion is fully and specifically supported by the case of Abney v. Moore, 106 Ala. 131, 18 South. 60; and substantially by the cases of Golding v. Golding, 24 Ala. 122; Elmore v. Mustin, 28 Ala. 309; Gregory v. Walker, 38 Ala. 26; and Griffith v. Marsh, 86 Ala. 302. A dictum to the contrary in Trawick v. Davis, 85 Ala. 342, 5 South. 83, cannot be approved or followed. It may be noted also that our early cases of Dunn v. Bank of Mobile, 2 Ala. 152, and Shepherd v. Nabors, 6 Ala. 631, are perhaps not in harmony with the later decisions.
In addition to these precedents of our own the great weight of modern authority is in clear accord.—Hunt v. Hunt, 119 Ky. 39, 82 S. W. 998, 68 L. R. A. 180, 7 Ann. Cas. 788, and note, 790; Wilson v. Carrico, 140 Ind. 533, 40 N. E. 50, 39 Am. St. Rep. 213, and note, 219; Seals v. Pierce, 83 Ga. 787, 10 S. E. 589, 20 Am. St. Rep. 344; Shackelton v. Sebree, 86 Ill. 616; Lauck v. Logan, 45 W. Va. 251, 31 S. E. 986; West v. Wright, 115 Ga. 277, 41 S. E. 602; Wyman v. Brown, 50 Me.
It results from the conclusion stated that by the death of Abigail Phillips, about the year 1908, Elijah J. Phillips became invested with an estate in fee simple; and, not being entitled to the possession theretofore, neither limitations nor prescription could run against his title until thereafter.
The burden was on plaintiffs to show either a superior title in themselves, or a forcible entry or unlawful detention by defendants.—Daniel v. Williams, 177 Ala. 140, 58 South. 419.
There is no evidence whatever that either of the defendants entéred in recognition of plaintiffs’ title and in subordination thereto. The only hint of a forcible entry is found in the testimony of J. W. Phillips, one of the plaintiffs, that Elijah J. Phillips, while in possession of the premises, and after plaintiffs’ demand upon him to surrender the possession, acquired some time before, “cut through a fence,” and went into a field and took possession and plowed. Cutting through an inside fence, as an act separate and apart from the previous entry upon and possession of the premises as a whole, is not a forcible entry upon the premises, and will not support the action.
It is clear, therefore, the plaintiffs were not entitled to the general affirmative charge, as given by the court; and equally clear, we. think, that defendants were entitled to such a charge, as requested by them. In both
Reversed and remanded.
