Ashford v. Prewitt

• Decision Date: 30 January 1894
• Citation: 14 So. 663,102 Ala. 264
• Court: Alabama Supreme Court
• Parties: ASHFORD v. PREWITT ET AL.

14 So. 663

102 Ala. 264

ASHFORD v. PREWITT ET AL.

Supreme Court of Alabama

January 30, 1894

Appeal from chancery court, Lawrence county; Thomas Cobbs Chancellor.

Suit by Caroline Ashford against Josephine Prewitt and others, to have enjoined several statutory real actions, in the nature of ejectment, for the recovery of the possession of certain lands, and for a decree declaring that the complainant was clothed with a paramount equity, which dominated the title of Mrs. Prewitt and those claiming under her. From a decree dismissing the bill, on final hearing, upon pleadings and proof, complainant appeals. Affirmed.

R. C Brickell and D. D. Shelby, for appellant.

J. B Moore and Roulhac & Nathan, for appellees.

STONE C.J.

This litigation, in some of its forms, has been many times before this court. The land which has been the subject of the various suits is a tract of about 700 acres lying in Lawrence county, south of the Memphis & Charleston Railroad. The descriptive numbers of the land are shown in the transcript. For the purposes of this suit, we need go no further back than to the time when the title was in Thomas H. Ashford, husband of Caroline Ashford, appellant in this cause. Some time between 1855 and 1860, Thomas H. Ashford sold and conveyed these lands to Richard Prewitt; Caroline, his wife, joining in the conveyance. They conveyed by warranty deed, and Prewitt went into immediate possession under his purchase. Some question was raised, in some of the stages of the litigation, whether Prewitt paid to Ashford the purchase money of this land, but we think the proof satisfactorily shows its payment long before any question was raised as to the rightfulness of his title. We will show, further on, that although the title was taken and held in the name of Thomas H. Ashford, the husband of Caroline, she claims that it was paid for with her money, part of the corpus of her statutory separate estate, invested by her husband and trustee in the land, and the title improperly taken in his name. Against this claim and attempt of Mrs. Ashford to trace her money into the land, and to fasten an equity upon it, both Richard and Josephine Prewitt separately plead and set up that they are bona fide successive purchasers of the land from the said Thomas H. without notice of the equitable claim of said Caroline. This plea is in form sufficient, its averments are proved, and we think there is a failure of proof to trace notice to either of them. We have made these statements for the purpose of slabbing off these inquiries, as not presented by the present record. Prewit v. Wilson, 103 U.S. 22.

In 1871 Mrs. Caroline Ashford, then the widow of Thomas H. Ashford instituted a suit in chancery against the administrator of her deceased husband, against Richard Prewitt, Josephine Prewitt, and certain creditors of Richard Prewitt, the purpose of which was to have it declared and decreed that the lands in controversy, together with other lands, the title to which had been taken in the name of Thomas H. Ashford, had been purchased by him with moneys which were of the corpus of her statutory separate estate, and were rightfully her property. Richard Prewitt's defense was that he had bought and paid for the lands, and received a conveyance from Ashford and wife, without notice that her money had been used in the purchase. Josephine, who had title from Richard Prewitt, supplemented this defense with the averment and plea that while she was single, in consideration that she would marry the said Richard, he, in 1866, conveyed said lands to her by warranty deed, and that thereupon, and in consideration thereof, she did marry the said Richard, and became his wife, and that not until long afterwards had she any knowledge or notice that the moneys of said Caroline had purchased the lands. The administrator of one Liles, a creditor of said Richard Prewitt, had instituted proceedings to subject the lands in controversy to the payment of a debt of said Richard. The ground of his contention was that the deed from Richard to Josephine Prewitt was fraudulent. A decree had been rendered dismissing the bill, and the case was pending on appeal in this court. In this condition of things, an agreement in the nature of a compromise of the conflicting claims to the lands involved in this suit was entered into between Mrs. Ashford and the Prewitts. That agreement, however, in no way affected the suit by Liles to subject the land to the payment of his claim. The agreement was entered into in November, 1875, and consisted of the following: Mrs. Ashford signed a quitclaim deed to Richard Prewitt, duly attested, which contains this clause: "In consideration of said alleged payment, [payment of the purchase money by Richard Prewitt to Thomas H. Ashford,] and other considerations me thereunto moving, I have and do by these presents convey all the right, title, and interest I have in said above-described lands south of said line of railroad [the lands here sued for] to said Richard Prewitt." This deed was not delivered to Richard Prewitt, and was not intended to be delivered to him, except on a future contingency. It was delivered to J. B. Moore in escrow, accompanied by the written power and authority of Mrs. Ashford, which was also signed by her, and properly witnessed. Its terms were, and are here copied: "I have this day executed a quitclaim deed to certain lands in Lawrence county, Alabama,-705 acres lying south of the Mem. & Ch. R. R.,-to Richard Prewitt. Said lands are described in said deed. I have delivered said deed to J. B. Moore, as an escrow, to be delivered to said Prewitt upon the happening of the following contingency: If a certain suit now pending in the supreme court of Ala.-Liles' Adm'r v. said Prewitt et al.-is affirmed, (decided in favor of Prewitt,) said Moore is to deliver said deed to said Prewitt; otherwise, he is to hold subject to my order." One of the terms of the agreement was that the Prewitts were to desist from all further defense to the said suit of Mrs. Ashford for the recovery of other lands, in which she was seeking to fasten the same equity she asserted in the lands involved in this case. There is a contention that Prewitt, as one of the terms of the compromise, agreed and promised to furnish certain important testimony for Mrs. Ashford, in aid of her claim to the other lands sued for, and that he failed to do so. This is denied. We do not think the proof in regard to the last-alleged promise and its breach renders it necessary that we should comment upon it. The result of said agreement of compromise was that the Prewitts, husband and wife, and their solicitors, ceased to give attention to the cause, ceased to look after it, and prepared and offered no proof on its final hearing. They strictly observed and kept their agreement to make no further defense to the said suit of Mrs. Ashford. In October, 1877, Mrs. Ashford's suit to enforce a trust in the lands was brought to a final hearing. She had a recovery as to the other lands sued for; and the Prewitts not being represented, and offering no proof, it was decreed that she was entitled to the lands south of the railroad,-the lands which are the subject of this suit. The decree of the chancellor declared that the legal title was vested in her, but no deed was made, or ordered to be made. Some steps were afterwards taken to get rid of this decree, but nothing was accomplished by them. On an appeal from it to this court, it was affirmed on certificate, no transcript having been filed. The case of Liles' Adm'r v. Prewitt was not finally disposed of in this court until October, 1881, when it was affirmed; the court holding that Josephine Prewitt's title under her deed from Richard Prewitt was paramount to the claim of the creditors of the latter. Richard Prewitt died in 1882, and in the year 1887 J. B. Moore delivered to his heirs the deed which Mrs. Ashford had placed in his hands, as an escrow, in 1875. In 1887-88 the decree which Mrs. Ashford had recovered against the Prewitts in 1877 was executed against the Prewitts in 1877 was executed, and she was put in possession of the lands which are the subject of this suit, thus evicting Mrs. Prewitt and her subvendees. Thereupon, the persons thus evicted brought their several statutory real actions against Mrs. Ashford for the purpose of regaining the possession. Those suits were decided by the circuit court in favor of Mrs. Ashford; but on appeal to this court the judgments of the circuit court were reversed, this court holding that the legal title to the land was not in Mrs. Ashford, but was in Mrs. Prewitt and those holding under her, by virtue of Mrs. Ashford's quitclaim deed. Prewitt v. Ashford, 90 Ala. 294, 7 So. 831. One principle declared by this court was that the facts of the case did not bring it within the influence of section 3595 of the Code of 1886, and, not being governed by that statute, the "decree rendered by the chancery court, purporting to divest the legal title to land out of one person, and vest it in another, does not, proprio vigore, confer a legal title, which can avail anything in an action at law." This court further declared that "the plaintiff, on the facts proved, would have been entitled to the general affirmative charge in his favor." The object of the present bill by Mrs. Ashford was and is to enjoin those statutory real actions for the recovery of the possession of the lands, and to obtain a decree declaring that, by virtue of the decree in...