95 Ala. 191 | Ala. | 1891
This case was submitted to tbe chancellor on tbe sufficiency of four several pleas. Tbe first, second and fourth were held insufficient, while tbe third was pronounced a good defense to tbe bill. There are cross-assignments of error, and tbe sufficiency of each of tbe pleas is thus presented for our decision.
Sibley’s title, as alleged, arose as follows: In October, 1869, one Duvall executed to Brown a mortgage on an undivided half interest in certain lots of land in Mobile county, to secure a debt of $2,500.00, due in one and two years. Tbat mortgage was duly recorded. In November, 1888, Brown having died, bis executors couveyed and transferred tbe mortgage and all it secured to Sibiey. This mortgage
Partition is tbe object of tbe present suit. Tbe bill sets forth Sibley’s claim and chain of title as briefly sketched above. It avers that tbe other undivided half interest in tbe lots belongs to Alba, tbe defendant. Only tbe two, Sib-ley and Alba, are made parties to this suit. ■ In tbe bill and transcript before us, tbe reference to tbe foreclosure suit does not disclose who were defendants, other than Barnes, tbe administrator of Duvall. It speaks of that suit as “tbe case entitled Origen Sibley v. E. S. Barnes, administrator, et al.” We are no where informed who were tbe other parties defendant. We suppose they were tbe heirs-at-law of Du-vall, tbe mortgagor; for, unless they were before tbe court, their title could not be devested. We will therefore treat this case as if they were before tbe court. It is proper that we should state that no intimation has been given, either in tbe pleadings or argument, which questions tbe presence of all necessary parties in tbe foreclosure suit.
It is not shown in tbe record, nor averred in tbe pleadings, whether or not Duvall and Alba were original tenants in common of tbe lots sought to be partitioned, or whether Alba claims to' have acquired bis interest at a later time. Neither is it denied that Duvall, when be executed tbe mortgage to Brown, owned an undivided half interest in tbe lots; nor is it claimed or averred that Alba has ever acquired that half interest by purchase or descent. Tbe only right be relies on for maintaining bis possession is, that be “went into adverse possession of said one-half interest in the-lands claimed by complainant in this suit, and was claiming said interest adversely to all tbe world during tbe remainder of said year 1877, and during tbe time that has since transpired, and is now bolding tbe same adversely.” Tbe bill charges that Alba and Sibley each own an undivided half interest in tbe lots, tbe latter by virtue of bis purchase at tbe foreclosure sale; and tbe foregoing extract from plea No. 2 is tbe only statement of fact interposed by defendant, that can be construed into a denial of the averment that Duvall and Alba were tenants in common. Under this state of'the pleading, we feel forced to treat this case as if Duvall and Alba were originally co-equal tenants in common.
Tbe first plea interposed sets up tbe alleged champertous agreement between Sibley and Barnes, which led tbe former to purchase and become tbe owner of tbe Duvall claim and
Plea No. 2. We have copied above the averment found in this plea in reference to Alba’s adverse holding. It is wholly insufficient to constitute his possession adverse against a tenant in common. “The seizin and possession of one tenant in common is the seizin and possession of the other or others, and an uninterrupted, exclusive possession. by one is not usually deemed adverse, unless accompanied by circumstances indicating an expulsion or ouster of the other.” — Brady v. Huff, 75 Ala. 80; Abercrombie v. Baldwin, 15 Ala. 363. “The possession of a tenant in common is not’ adverse to that of his co-tenant, unless there is an actual ouster, or refusal to let the co-tenant occupy.” — Burrus v. Meadors, 90 Ala. 140; Newbold v. Smart, 67 Ala. 326; Stevenson v. Anderson, 87 Ala. 228. “The possession of one tenant in common, though exclusive, being consistent with the right of his co-tenant, does not amount to a disseizin of the co-tenant; and an ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseizin of his co-tenant by a tenant in common.” — 1 Amer. & Eng. Encyc. of Law, 232; Duncan v. Williams, 89 Ala. 341. The averments of the plea fail to show a holding by Alba, adverse to the rights of his co-tenant Brown. But, if this aver- • ment were sufficient, that would not oust the jurisdiction. The chancellor would suspend proceedings until the question of disputed ownership could be settled on an issue to be made up and submitted to a jury. — McMath v. Debardelaben, 75 Ala. 68.
Another view: If, when the sale was made under the foreclosure proceedings, any person other than. Sibley had purchased, it would scarcely be contended, under the facts shown in the pleadings in this case, that such purchaser
The third plea sets up in defense of this.suit for partition that the alleged mortgage debt from Duvall to Brown had been paid long before Sibley asserted claim to' it, or procured a foreclosure of the mortgage, which culminated in his purchase of the undivided half interest. In the foreclosure suit, the heirs of Duvall were necessary parties. "We suppose they were parties, and, as we have before stated, we will treat this case as if they were parties. The record before us shows that Barnes, the administrator, was a party to that suit. Plea No. 1 charges champerty, collusion and fraud between Sibley and Barnes, by which they acquired the ownership of the alleged mortgage debt, and procured the decree of foreclosure and sale under it. If the mortgage debt had been paid, and if, by collusion and fraud between Barnes and Sibley, the decree of foreclosure and the sale were brought about, then a great wrong was inflicted on Duvall’s heirs; and unless, by failure to move at. the proper time, they have forfeited their right to have the questions retried and the wrongs redressed, the courts and their process are open to them, and they can obtain ample redress and relief from Sibley and Barnes. This, on the cardinal principle, that fraud, if properly assailed, vitiates all transactions, no matter what form they may be made to assume. Standiug, however, as the record does, and assuming that the heirs of Duvall were parties to the foreclosure suit, that record is conclusive evidence that the mortgage debt was unpaid, alike against Duvall’s estate, and against all other persons who can not connect themselves with his title.
If, however, Alba has succeeded to Duvall’s title or rights, not by mere adverse holding, but by purchase or conveyance, or by a subsisting, unpaid and unbarred money demand, this may open the door to him to show that the debt from Duvall to Brown had been paid before the decree in foreclosure was rendered. — Mead v. York, 57 Amer. Dec. 467, and note. The third plea presents no bar to this suit, and the decretal order of the chancellor holding that plea sufficient must be reversed.
Reversed and rendered, but cause remanded for further proceedings in accordance .with this opinion. Let the ap-pellee pay the costs of the appeal.