108 So. 858 | Ala. | 1926
It should be stated that the alleged holder of a life estate, Rose Phelps, is not assigning error or otherwise contesting the decree.
Complainants as reversioners or remaindermen have a right to proceed in equity, pending the life estate of Rose Phelps, to have their title or interest in the lands declared as against the claims of the respective respondents, if they have such interest. Gunter v. Townsend,
Appellants, as original complainants, insist that when they showed title to a one-half interest in the lands in question in their deceased ancestor, Mary Phelps, notwithstanding the life estate in her husband, Rose Phelps, a prima facie case is made out for relief as to such interest or estate, and the burden of going forward with the evidence is shifted to respondents to show a divestiture of their estate. Such is the rule. Burkett v. Newell,
The possession of a widow under her quarantine right is not adverse and confers no greater or superior title to her grantee. Robinson v. Allison,
The testimony is without conflict that upon the death of Marion England, in about the year 1865, his widow remained in possession of the land under her quarantine right, and so remained until her death in 1920. When the evidence of A. E. (Dallis) England is considered as a whole, it shows that his possession was permissive and not antagonistic to that of the life tenant — the widow of Marion England. He states that his mother occupied the premises during her lifetime, occupying the house on the place; that until he was about 18 years of age he remained there with her; so as to the other children until they married, and that "she was there just under a quarantine"; that he did not move on the land as a squatter, but "with the permission of my [his] mother"; and the witness adds that "until I [he] bought this interest", he set up a notice of adverse claim and also by virtue of a deed from M. E. Goodwin. Notwithstanding this claim, he said that so far as he knew his "mother lived there uninterruptedly during her whole life"; that she "treated it as her home," and occupied the house and two gardens to the time and after she married Davis. The legal effect of this evidence is that witness' entry and possession was permissive. The testimony of J. J. England and J. A. Jones was, likewise, to the effect that the widow occupied the lands of her former husband, Marion England, under her right of quarantine. This disposes of the hostile claim of Wilcox, the successor in title of A. E. (Dallis) England to the N.W. 1/4 of N.E. 1/4 of section 3.
The claim of complainant in cross-bill, O. D. McClendon, to E. 1/2 of N.E. 1/4 of said section was by conveyance of Mollie E. England, the wife of A. E. (Dallis) England. The evidence fails to support the insistence that the said Mollie E. England was in adverse possession of said 80 acres of land; the widow's right and possession as to this *15 land was exclusive. Said grantee McClendon recognized the life estate or quarantine right of possession of the said widow in his deed from her attempting to convey the E. 1/2 of N.E. 1/4 and N.W. 1/4 of N.E. 1/4 of said section. He claims in his pleading by deed from the widow, Elizabeth Davis (née England). He admits in his interrogatories this recognition of the life estate or possession by the widow under her quarantine right; and also in her conveyance to him, specifically stipulating:
"It is agreed and understood by the parties hereto that the said Elizabeth Davis is to hold possession and have the use of the house in which she now lives so long as she lives, and at her death the said Olen D. McClendon is to take possession of the same. Situated in St. Clair county, Alabama."
The deed from Elizabeth Davis, formerly Elizabeth England, in habendum clause, was to said Olen D. McClendon, his heirs and assigns forever, and contained clauses of warranty to said grantee, his heirs, executors, and assigns forever, against the lawful claims of all persons, conveyed no greater right than she held. The provision set out is confirmed by the other evidence and refutes McClendon's claim of title by adverse possession.
No act or deed of said Elizabeth could be effective to cut off the title of the heirs of Marion England, for it is of statutory origin, and to such effect are our decisions, that no estate or interest of any person can be defeated, extinguished, or discontinued by the act of any third person having a possessory or ulterior interest, "except in the cases especially provided for" by statute. Code 1907, § 3400; Code 1923, § 6910; Hargett v. Franklin Co.,
To avoid the effect of this priority in the line of conveyance, respondents in the original bill, Wilcox and McClendon, insist that the foreclosure and deed by and from Harsh was champertous on account of adverse holding to which we have adverted. We have indicated that these lands were subject to and held by said widow of Marion England under her quarantine right from 1865 to the time of her death in 1920. The right of remaindermen to transfer the title or interest soheld must be admitted. Possession of land by or under persons having a contingent or limited estate is not such as to avoid a deed made by the owner for champerty and maintenance. That is to say, "adverse possession by one who is estopped to deny the title of the actual owner is not such a holding as will affect the deed made by such owner." It follows that the possession which will avoid a deed for champerty "must be actual, visible, exclusive and hostile." 11 C. J. pp. 256, 260, 261, § 46; Stringfollow v. T. C. I. R. Co.,
The St. Clair Hotel Company having shown its legal title to some interest in the land, the burden of avoiding it by showing their defense of superior title by adverse possession, as they have undertaken to do, is upon Wilcox and McClendon. Weaver v. Blackmon,
It follows from a careful consideration of the evidence that so far as concerned the interest of J. J. England the hotel company acquired that through foreclosure of the Goodwin-Harsh mortgage; and this vested interest to the remainder or reversion was not divested by the possession of the widow from 1865 to 1920 under her quarantine right.
It follows that there was error in the decree as to the right, title, and interest of Wilcox and McClendon as against the St. Clair Springs Hotel Company. This conclusion of reversal of the decree necessitates a consideration of the extent of the respective interests of Mary Phelps, the predecessor in title of the original complainants, and J. J. England, the predecessor in title of the hotel company — respondent in original bill, and complainant in cross-bill. There were four children of Marion England: Puss England, Mollie England Phelps, Mary England Phelps, and John England. Puss (in 1875) and Mollie (in 1878) died intestate and left no children, husband, or wife surviving to the filing of the bill. Mary Phelps and husband, on September 5, 1878, conveyed all of their "undivided interest" described as "being one-fourth" in the described real estate, without naming the county, and acknowledged the instrument before one "C. J. Patterson, an acting justice of the peace," and it was signed by C. J. Patterson, justice of the peace. The granting clause as to the interest conveyed will prevail over interlocutory recitals. Porter v. Henderson,
If it be conceded that the deed was insufficient to convey title, the testimony shows the payment of the purchase price by the grantee. Thereby the latter was vested with a perfect equity which a court of chancery jurisdiction will respect. Copeland v. Warren (Ala. Sup.)
The deed from J. J. England to E. C. Thomason described the land conveyed as "3/4 undivided interest," describing the same in the granting clause — there was no habendum clause other than the "warrant (to) defend against all claims or claimants." If the deed be construed as conveying only three-fourths of said grantor's interest, a decree pro confesso having been taken in favor of the St. Clair Springs Hotel Company against J. J. England, he is concluded thereby in this litigation. The court erred in not decreeing relief to cross-complainant, St. Clair Springs Hotel Company, as prayed for in the cross-bill as amended, and in dismissing said cross-bill. On its appeal the decree is reversed and remanded.
The cross-bill was not multifarious, and there was no error in overruling demurrer of Wilcox and McClendon thereto on that or any other ground. In that respect the decree is affirmed. The decree is also affirmed in respect to Balcomb, Collins, et al.
Reversed and remanded on direct appeal; affirmed on cross-appeal.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
