Cotney v. Eason

• Citation: 269 Ala. 354,113 So.2d 512
• Decision Date: 25 June 1959
• Docket Number: 5 Div. 707
• Parties: W. A. COTNEY v. A. D. EASON.
• Court: Alabama Supreme Court

Page 512

113 So.2d 512

269 Ala. 354

W. A. COTNEY v. A. D. EASON.

5 Div. 707.

Supreme Court of Alabama.

June 25, 1959.

Cocke & King, Alexander City, for appellant.

Wm. I. Byrd, Alexander City, and Sam W. Oliver, Dadeville, for appellee.

MERRILL, Justice.

Appellee Eason filed an action for a declaratory judgment to construe the will of A. L. Adams, deceased, and to declare appellee the owner of certain property which he had purchased from the widow and heirs of A. L. Adams.

The respondents were Lillian R. Beasley, a stepdaughter of A. L. Adams, and appellant Cotney, to whom Lillian R. Beasley had sold a life interest devised to her in certain lands by the will of A. L. Adams, deceased. A decree pro confesso was entered against Lillian R. Beasley.

All of A. L. Adams' property was left to his wife and children, except a life estate devised to Lillian R. Beasley, in the following language:

'I also bequeath to my stepdaughter, my entire farm, consisting of 180 acres, more or less (here follows description); she to have the lands and profits and use of said lands for and during her natural life, but if she shall sell or undertake to sell, or mortgage or undertake to mortgage or create any lien of any kind on said lands, then her right to and all of her interest in said lands shall terminate and the same shall vest in my estate; at the death of said Lillian Barnett the title to said lands to vest in my estate and to be divided as provided by law among my legal heirs.'

It is stipulated that the widow dissented from the will and became entitled to dower and homestead, and it is also stipulated that through mesne conveyances the appellee, A. D. Eason, purchased whatever right, title and interest the widow and children of A. L. Adams, deceased, obtained under the will of A. L. Adams and the dissent of the widow.

A. L. Adams died in 1920 and his will was duly admitted to probate. In 1942, Lillian Beasley deeded her life estate to appellant Cotney, who went into possession but did not record his deed until 1957. It was stipulated that appellant had regularly assessed and paid taxes on a part of the lands, known as the Slaughter place, since 1942, and that appellee and his predecessors in title had regularly assessed and paid taxes on the other part of the lands since the death of A. L. Adams.

Both appellant and appellee agree that the case was tried in the lower court on two issues, which they pose in the form of questions:

'1. Did the conveyance by Lillian R. Beasley to W. A. Cotney of her life interest in all of the lands described in the Bill of Complaint work a forfeiture of such interest with the result that the interest of Lillian R. Beasley in all of said lands vested immediately in the heirs at law of A. L. Adams, deceased, and in A. D. Eason who has succeeded to all of the right, title and interest of the heirs at law of said decedent?

'2. Has W. A. Cotney acquired title by adverse possession to those lands described in the Bill of Complaint as Fractions A & B in the Northeast quarter of Section 14, Township 23 North, Range 23, known as the Slaughter place?'

The trial court found in favor of appellee, the effect of the decree being to answer the first question in the affirmative, and number two in the negative.

Appellant contends that the conveyance from Beasley to Cotney did not work a forfeiture, or even if it did, appellant had a fee-simple title to the Slaughter place by adverse possession.

The authorities support the following statements found in 160 A.L.R. 640 II:

'The general rules can be stated as follows:

'(1) A provision in a deed or will conveying or devising a legal life estate by which the life tenant is forbidden to transfer or encumber, voluntarily, his life estate, is void.

'(2) However, where such provision is followed by a limitation over or a provision for cesser or forfeiture to take effect upon the voluntary alienation of the life estate, the restraint on alienation becomes effective, and upon the happening of the contingency the life estate terminates or passes to someone else.'

In addition to the eight text books there cited, see 2 Powell on Real Property, § 208; 33 Am.Jur., Life Estates, § 43; 96 C.J.S. Wills § 980(b).

The great weight of authority supports the view that a limitation over or provision for cesser or forfeiture in a devise or conveyance of a legal life estate, to take effect upon voluntary alienation, is valid and effective where, upon the happening of such contingency, the life estate terminates or passes to someone else, and the life tenant ceases to enjoy the same. 160 A.L.R. 655 IV; Am.Law Inst. Restatement, Property, Vol. 4, § 409. In Camp v. Clearly, 76 Va. 140, the court, speaking of a legal life estate, said:

"It seems, however, to be clear that there is nothing in the law that prevents one man from limiting an estate to another until he alien it or attempt to alien it, or until he become bankrupt or insolvent, and if and as soon as he aliens or attempts to alien, or becomes bankrupt or insolvent, that his estate shall cease and go to another. This is what is called, in technical language, a conditional limitation, which is possible under the statutes of uses and devises. In such case the happening of the contemplated contingency ipso facto determines the estate of the first taker and vests it in the other to whom it is limited."

Our case of Libby v. Winston, 207 Ala. 681, 93 So. 631, 632, in holding certain conditions in a deed valid, quotes the following from Gray v. Balanchard, 8 Pick., Mass., 284, with approval:

"Every proprietor of an estate has jus disponendi (the right of disposing). He may grant it with or without condition; and if he grants it upon condition directly, the estate of the grantee will terminate with the breach of the condition, if the grantor chooses to avail himself of the forfeiture and enter for the breach."

This court further said: 'The grantor's intent to convey a defeasible estate only is clear and unequivocal. His language leaves no doubt of his purpose in that respect.'

In H. H. Hitt Lumber Co. v. Cullman Coal & Coke Co., 200 Ala. 415, 76 So. 347, 348, it was said that a condition in a deed to standing timber was not void where 'the intent of the grantor to make a conditional estate is otherwise clearly and unequivocably indicated.'

It is 'clear and unequivocal' that A. L. Adams intended that Lillian R. Beasley hold the life estate subject to the condition that she should not voluntarily convey it. It is undisputed that she did attempt to convey it to appellant in 1942. Under the authorities...