Abbett v. Page

• Citation: 92 Ala. 571,9 So. 332
• Parties: ABBETT v. PAGE ET AL.
• Decision Date: 20 May 1891
• Court: Supreme Court of Alabama

9 So. 332

92 Ala. 571

ABBETT v. PAGE ET AL.

Supreme Court of Alabama

May 20, 1891

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

This was a statutory action in the nature of ejectment, brought by the appellant, A. K. Abbett, against the appellees, Mattie Page and others, and sought to recover the possession of a certain lot specifically described in the complaint. Hattie Davis, on motion, made herself a party defendant to the bill as landlord of three of the original defendants, who were her tenats upon a portion of the lot sued for, and she disclaimed as to the rest. The lot sued for was situated in the city of Montgomery, and its dimensions are 70x200 feet. On the trial as is shown by the bill of exceptions, there was evidence introduced showing that prior to the 6th of March, 1878, one Mrs. Amanda Boothe owned and occupied the lot in controversy that on that day she executed a conveyance to the plaintiff in this suit of the property, and transferred unto him the whole of the lot here sued for; and that on the same day the plaintiff executed to her a mortgage back on the property to secure the deferred payments of the purchase money, and that upon the execution of the deed the plaintiff entered into possession of the upper or northern portion of the lot here sued for. It was further shown that after the sale the said Mrs. Boothe occupied the southern portion of the lot, living on it up to the time of her death, which occurred in December, 1882; that on January 25, 1882, the said Mrs Boothe executed to the defendant Hattie Davis a lot of 50x70 feet, reciting in the deed that it was 50 feet, lying between the lot owned and occupied by her, Mrs. Boothe, and the land sold by her to the plaintiff; that, upon the execution of this conveyance, the said Hattie Davis took possession of the lot described therein, has improved the same by building a house thereon, and has been continuously in possession claiming it as her own through her tenants. It was further shown that, upon the death of Mrs. Boothe, her administrator, under an order of the court, sold and conveyed by deed the southern half of the lot, which had been occupied by the said Mrs. Boothe during her life, to one Thomas Banks, who occupied the same by his tenants, who are the other defendants of this suit. Against the objection and exception of the plaintiff, the court allowed the defendants to introduce witnesses, who testified that, shortly after Mrs. Boothe had executed the deed to Abbett, and after Abbett had gone into possession of the north end of the lot, Mrs. Boothe pointed out to Abbett "what she called the 'dividing line' between them," which afterwards became the northern boundary of the lot sold to Hattie Davis; that, upon the designation of this line by Mrs. Boothe, the plaintiff built a fence along said line; that this fence was built in the latter part of the year 1878, or the early part of 1879; and that the said Mrs. Boothe remained in possession of the remaining 150 feet, south of such fence, until she sold to Hattie Davis a part thereof, as above stated. Against the objection and exception of the plaintiff, the court allowed the defendants to ask one of the witnesses, "did Abbett," the plaintiff, "know that Miss Davis had improved her property?" There was evidence tending to show that the plaintiff had paid the mortgage which was given to secure the deferred payments on the land, but the proof was in conflict, and uncertain as to whether it had been paid before or after the law-day of the mortgage. Upon the evidence as adduced, the plaintiff requested the court to give the following written charges: (1) "If the jury believe the evidence, they must find for the plaintiff as against the defendant Miss Davis." (2) "If the jury believe the evidence, they must find for the plaintiff as against the defendants Mattie Page and Henrietta Nobles." (4) "If the jury believe from the evidence that the note and mortgage given by plaintiff to Boothe in March, 1878, were paid and discharged at any time before Boothe undertook by the deed offered in evidence by defendant Davis to convey to Davis, i.e., at any time before _________, then, at the time of Boothe's deed to Davis, Boothe had no title by reason of such mortgage, and could convey none." (6) "If the jury believe from the evidence that the mortgage made by Abbett to Boothe was paid before the commencement of this suit, then said mortgage does not avail the defendant as evidence of title paramount to plaintiff's title." The court refused to give each of the charges as requested. There was judgment for the defendants, and the plaintiff appealed.

Sayre & Pearson, for appellant.

Tompkins & Troy, for appellees.

WALKER J.

The estoppel of a grantor, who remains in possession of land after a conveyance with general warranty, to set up a claim to the land inimical to the rights of the grantee, cannot be extended so far as to prevent the grantor's acquisition of title by a subsequent holding adverse to the grantee; and the title so acquired by adverse possession does not pass to the grantee by operation of the covenants of warranty in the deed. The estoppel upon the grantor is similar to that operating in favor of a landlord, as against his tenant, so long as that relation exists and is recognized between them. But the tenant may repudiate the relationship, and set up an adverse claim and possession in himself, which, when properly brought home, whether expressly or by implication, to the knowledge of the landlord, will put in operation the statute of limitations in the tenant's favor. Wells v. Sheerer, 78 Ala. 142. In like manner the grantor, who, by remaining in possession, becomes the grantee's tenant, may repudiate the relationship evidenced by his deed, and may reacquire title by an adverse possession for the requisite length of time. No more than in the case of an ordinary...