Webb v. Robbins, 77 Ala. 176

Webb v. Robbins

77 Ala. 176 | Ala. | 1884

STONE, O. J. —

The motion to dismiss the appeal in this case is based on a misapprehension of the effect of the act approved March 6, 1875. — Code of 1876, § 3925. The terms of that statute do not make it compulsory that appeals, taken during the session of this court, shall be made returnable to the first Tuesday in some month of the term, during which the ap*181peál is taken. It only provides that they may be so taken. This statute provides only a cumulative remedy, and does not repeal section 3916 of the Code. "We have several times held, that when an appeal is taken to this court, which is silent as to the time to which it is returnable, whether such appeal is taken during vacation, or during a term of this court, it stands returnable, by the mere force of the statutes, to the regular annual term of this court, which commences its session next after the suing out of the appeal. The appeal in this case, being sued out in September, 1882, was returnable to the first Tuesday in December, 1882. There was but one appeal in this case, although the clerk issued two citations. Citations do not constitute an appeal. They are only notice that one has been taken.

Nor does the fact that no notice is taken of an appeal at the term to which it is taken, nor that the transcript is not then filed, impair the force of the appeal, unless the appellee invoke and obtain the action of the court, on a motion to affirm for want of a transcript, or for want of assignment of errors; or a certificate is obtained under the 29th rule of practice in this court. Nothing being done at such first term, the cause passes over to the next term. The motion to dismiss the appeal is overruled. — Co^e, § 3953.

The bill, § 7, avers that the Lower Peach Tree warehouse, landing and property belong to the three complainants, Sarah S. Dobbins, Yiola S. Curtis, and Alice G-. Mayer, and that they belong to them “ as their separate estate under the married women’s law of the State of Alabama.” This is equivalent to an averment, that it is their statutory separate estate. The answer to this averment is, “ that he can not admit that the complainants are the sole owners of said Lower Peach Tree Landing, warehouse and property, and that it belongs to them as their separate estate under the married women’s law of the State of Alabama, and requires strict proof of said allegation.” There was an amendment of the bill, filed December 24, 1879, but it does not relate to this question. The proof shows that Mrs. Sarah S. Dobbins owned two-thirds of the said property by regular chain of documentary title, from D. IT. Gregg, her father, down to her. The deed to her was from her mother, Elizabeth TI. Gregg; and Mrs. Dobbins being then a married woman, the language of that deed — “to the only proper use and behoof of the said Sarah S. Dobbins, her heirs and assigns,” under our uniform rulings, vested in her an equitable separate estate as to the said two-thirds of said property.— Cuthbert v. Wolfe, 19 Ala. 373 ; Caldwell v. Pickens, 39 Ala. 514; Short v. Battle, 52 Ala. 456 ; Miller v. Vass, 62 Ala. 122; Smith v. McGuire, 67 Ala. 34.

*182The third of the property which had belonged to William E. Powe, depends on a different chain of title. Powe had conveyed his third to Hestle, trustee, to secure the payment of a debt of four thousand four hundred dollars, acknowledged to be due from him to his five children, Lavinia E., then the wife of Hestle, the trustee, Clara S., Alice Gr., Viola S., and Margaret E., Powe. This mortgage security contained a power of sale. Margaret E. has died, and the others have married. There is no documentary evidence that Hestle has ever sold or conveyed this property; but Robbins testified such sale was made, and that the four daughters, Lavinia, Clara, Alice and Viola, became the purchasers. This proof was oral, but no exceptions were filed to its admissibility before the chancellor. Binford v. Dement, 72 Ala. 491. Taking this testimony into the account, it is shown that Alice Mayer and Viola Curtis each became the owner of one-fourth of Powe’s third interest, equal to one-twelfth of the entire ownership of the property ; and the remaining two-fourths of that third — two-twelfths of the whole property — became the property of Sarah S. Robbins. These conveyances have no words of exclusion, and consequently these titles create a statutory separate estate. It is thus shown that, as to eight-twelfths of this property, Mrs. Sarah Robbins holds it as her equitable separate estate; while, as to the remaining four-twelfths, they are statutory separate estate— two-twelfths being in Mrs. Robbins, and one-twelfth each in Alice Mayer and Viola Curtis. There is a fatal variance between the allegations and proof, as the pleadings now stand. Milhous v. Weeden, 57 Ala. 502; Conner v. Smith, 74 Ala. 115; Young v. Hawkins, Ib. 370; Lewis v. Montgomery B. & L. Asso., 70 Ala. 276 ; 1 Brick. Digest, 743, § 1538.

No question is raised by the pleadings as to the non-joinder of complainants’ husbands, as their trustees. Should an amendment be offered, it would be well to. consider that question. Pitts v. Powledge, 56 Ala. 147; Sawyer v. Baker, 72 Ala. 49.

There is found in the transcript what purports to be an amendment to the bill, offered on the day the cause was submitted. No ruling seems to have been had upon it. It does not cure the errors in the bill, nor harmonize it with the proof.

With the exception of the variance above pointed out, we think the complainants have fully made out their case. The points are, first: That the two instruments — the deed and bond — were executed at one time, and were intended to relate to one and the same transaction. We think this is satisfactorily proved; and if the positive testimony leaves the question at all in doubt, the conduct of Smith under it, and even the conduct of Webb, while he was in possession as tenant, leave no doubt that the bond was intended to be a restriction on *183Smith’s right of use. The proof comes fully up to the principles declared when the case was before us on the pleadings. Robbins v. Webb, 68 Ala. 393. Second: Had Webb notice of the bond before he concluded his purchase ? Speaking of the bond or obligation given by Smith and McLeod, not to do or suffer warehousing or shipping on or from the lands purchased, Webb, in his answer, says: “He admits that he was informed by the said Smith, before the said sale by said Smith and others to him on the 2d April, 1878, of the existence of some such obligation.” This, without more, was enough to make it Webb’s duty to seek from Bobbins, or those claiming the warehouse property, information of the nature of such obligation, if any existed; and failing to do so, he is chargeable with notice of every thing such inquiry would have led to. Hodges Bros. v. Coleman & Carroll, 76 Ala. 103. It can not be questioned, that if he had made the inquiry, he would have learned the exact state of the case. We think, however, the testimony in this case authorizes us to go further. We are convinced that Webb, before the trade was concluded, if not before it was entered upon, knew the nature of the obligation, and that he acted on the belief — possibly on advice — that such obligation enured to the benefit of B. H. Gregg alone, and only bound Smith and McLeod; and that it could not operate for or against any other person, succeeding to the ownership of the several parcels of land.

It is clearly competent, in making a sale of real estate, to retain an easement or servitude in the lands sold ; and, when not in general restraint of trade, the seller may retain in himself certain uses of the freehold, which would otherwise pass to the grantee. Such retention, or limitation of the use, being a condition upon which the estate is acquired, attaches as an infirmity in the estate itself, and as a privilege or easement in the estate of the grantor, in whose favor the limitation is imposed. This easement and this disability follow the several parcels of land, into whose hands soever they may pass, with notice, actual or constructive, of their existence. If the limitation or restriction is expressed in the conveyance, that is notice to all persons acquiring an interest in the freehold. If not so expressed, then notice must be otherwise shown, to charge a purchaser with the servitude. We think this case falls directly within this principle, and that the owners of Lower Peach Tree landing and warehouse property are entitled to a perpetual injunction, as prayed for, upon making their allegations of title correspond to their proof. And this is a case peculiarly within the jurisdiction of a court of equity, which does not require the insolvency of the defendant to uphold it. — High on Injunctions, 2d ed., §§ 850., 851, 1153, 1151; *184Hills v. Miller, 3 Paige, 254; Trustees of Watertown v. Cowen, 4 Paige, 510 ; Seymour v. McDonald, 4 Sandf. Ch. 502; Clark v. Martin, 49 Penn. St. 289.

Reversed and remanded.