Abney v. Moore

• Decision Date: 23 April 1895
• Citation: 18 So. 60,106 Ala. 131
• Parties: ABNEY ET AL. v. MOORE.
• Court: Alabama Supreme Court

18 So. 60

106 Ala. 131

ABNEY ET AL. v. MOORE.

Supreme Court of Alabama

April 23, 1895

Appeal from circuit court, Chilton county; N. D. Denson, Judge.

Ejectment by P. M. Moore, administrator of the estate of William Walker, against Martha Abney and others. Judgment was rendered for plaintiff, and defendants appeal. Reversed.

This was a statutory real action in the nature of ejectment brought by the appellee, P. M. Moore, as the administrator of the estate of William Walker, deceased, against the appellants, the heirs at law of said William Walker deceased; and sought to recover certain lands specifically described in the complaint. The defendants pleaded the general issue, and by special plea that the lands sued for had been conveyed to them by deed from their ancestor, the intestate of plaintiff. Issue being joined on these pleas the cause was tried by the court, without the intervention of a jury, upon an agreed statement of facts, which were substantially as follows: On February 13, 1880, the plaintiff's intestate was the owner in fee of the lands sued for and described in the complaint, was in possession of the same, and residing thereon with his family, the defendants; that on the said 13th day of February, 1880, the said William Walker, deceased, executed and delivered to the defendants a written instrument, which was as follows "Know all men by these presents that I, William Walker, a resident of the county of Chilton and state of Alabama, for and in consideration of the natural love and affection I have and bear unto my children, hereinafter named, besides the further sum of ten dollars to me in hand paid by my said children, to wit [naming the defendants in the present suit], the receipt whereof is hereby acknowledged, have given, granted, bargained, sold and conveyed, and by these presents do give, grant, bargain, sell and convey unto my said above-named children, their heirs and assigns, all my right, title and interest and estate to and in the following described lands, lying in the said county of Chilton and state of Alabama, to wit: [here follows a description of the lands sued for], to have and to hold unto my said above-named children, their heirs and assigns, together with all and singular the tenements and appurtenances thereto belonging, or in any manner thereto pertaining to the same, provided always, and it is expressly understood, that this conveyance is not to take effect until after my death, and that at my death the title to the foregoing described lands is to vest immediately in my said children. In testimony of the same, I have hereunto set my hand and seal, this the 13th day of February, A. D., 1880. [Signed] William Walker. [Seal.]" This deed was properly acknowledged before a notary public, whose certificate of acknowledgment was attached to the deed. The said William Walker, deceased, was in continuous possession of said lands until his death, exercising acts of ownership over them, and the defendants resided on said lands with him until some time in January, 1891, when said William Walker died; and since his death the defendants have been in the continuous possession and occupancy of said lands, claiming title to the same and were in possession of said lands at the time of the trial. On May 16, 1893, letters of administration were granted to the plaintiff at the instance of J. S. Johnson, who was a creditor of said William Walker, deceased. It was further agreed that the defendants were the only heirs of said William Walker, deceased, and the deed executed to them was the only deed ever executed by said Walker, conveying the lands sued for. The plaintiff offered in evidence a promissory note executed by said William Walker, deceased, to J. S. Johnson, for the purpose of showing an indebtedness due from the deceased that would authorize the granting of the letters of administration at the suit of the said Johnson. Upon the hearing of the cause, the court rendered judgment for the plaintiff, assessing damages for the detention of the lands by defendants. The defendants prosecute the present appeal, and assign as error the rendition of this judgment in favor of the plaintiff.

Geo. H. Craig and Doster & Abney, for appellants.

Houghton & Collier, for appellee.

HARALSON J.

The instrument to be construed,-which will be set out in the report of the case,-perfect in form as a conveyance concludes with the following provision: "Provided always, and it is expressly understood, that this conveyance is not to take effect until after my death, and that at my death the title to the...