Cruse v. Kidd

• Decision Date: 04 November 1915
• Docket Number: 7 Div. 702
• Citation: 70 So. 166,195 Ala. 22
• Parties: CRUSE et al. v. KIDD et. al.
• Court: Alabama Supreme Court

70 So. 166

195 Ala. 22

CRUSE et al. v. KIDD et. al.

7 Div. 702

Supreme Court of Alabama

November 4, 1915

Appeal from Shelby County Court; E.S. Lyman, Judge.

Ejectment by Douglass W. Kidd and others against Dutch Cruse and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

See also, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226.

Cecil Browne, of Talladega, and Haynes & Wallace, of Columbiana for appellants.

Riddle & Ellis, of Columbiana, and J.M. Kidd, of Birmingham, for appellees.

MAYFIELD J.

This is an action of ejectment brought by appellees against appellants. It is conceded that the legal title to the land involved, and the right of either party to recover or to hold the same against the other, depends upon the construction of the will of John W. Kidd, made the 8th day of November, 1859 and probated August 17, 1866.

This will has been before this court for construction once before. See report of the case of Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226. In this case, as in that of Kidd v. Borum, a trust deed was introduced in evidence, not as one passing the title, but as an aid in the proper construction of the will, both instruments being executed on the same day, and each referring to the other. These instruments will be found in the report of the former case (181 Ala. 144, 61 So. 100, Ann.Cas.1915C, 1226). The former case, however, was one in equity, and between parties all of whom claimed title through persons who took under the will. In the opinion in that case it was said, among other things:

"The will was not drawn by a skillful hand, and, standing alone, its provisions are to some extent contradictory and of doubtful import in respect to the estate conferred upon the widow. But, when considered in connection with the deed, it makes, in our judgment, the widow and her children at the time of testator's death tenants in common of an estate for her life (Chandler v. Jost, 81 Ala. 411, 2 So. 82), with the remainder in fee of the whole estate to all her children. These purposes and dispositions the testator intended and attempted to accomplish through the intervention of trustees. There was never any conveyance of the land in question to trustees; but whether the trust which the testator intended to create was a dry trust, or was of such character as to require activity and discretion of the trustees, equity will consider and treat the beneficial interest as having acquired the intended status in the first case because the trustees would have been useless incumbrances of the plan, in the second because no trust can be permitted to fail for lack of a trustee."

It is thus seen that the rights of the parties in that case were determined upon equitable grounds, as between parties to the will or those who either claimed under the will or claimed through others claiming through the same instrument.

Adverse possession was held not to be availing in that case for that the title of the claimant was based upon a deed from one of the life tenants, and that no such notice of the adverse holding was brought home to the cotenants, as to defeat their title as to the remainder. It was to this said:

"These facts show a possession by complainant and Flippin hostile in its inception and exclusive during its continuance, such as would set the statute of limitations to running as against strangers and would ripen into title after ten years. Customary acts of ownership are sufficient to impute notice to all not claiming in privity with the possessor. But the rule is that the possession of a tenant in common, without more, does not operate as a disseisin of cotenants, for in contemplation of law he holds for them. Fielder v. Childs, 73 Ala. 567. To operate as a disseisin in such case there must be a repudiation of the rights of cotenants and a claim of exclusive ownership brought home to their knowledge; that is, there must be positive information of the facts, however informally communicated or acquired." Kidd v. Borum, 181 Ala. 160, 61 So. 105, Ann.Cas.1915C, 1226.

It was decided in that case, however, that as to the estate for the life of the widow, the adverse possession had ripened into title; but that as to the remainder it had not, because not adverse to that title, as the deed to which the possession must be referred was from the widow, who had only a life estate. To this end, it was there said:

"The estate in remainder must be disposed of on still different principles. As to that, the defendants have never at any time been in a position to ask for any judgment or decree presently operative upon the possession of the property or the enjoyment of its usufruct. In such case laches cannot be predicated on the ground of mere delay because there can be no delay where there is no right to move. In such case the remainderman cannot be barred pending the life estate by the statute of limitations, nor is there field for the operation of the doctrine of prescription. See the cases cited in Jackson v. Elliott, 100 Ala. 669 and our recent case of Winters v. Powell, 180 Ala. 425, 61 So. 96." Kidd v. Borum, 181 Ala. 162, 61 So. 106, Ann.Cas.1915C, 1226.

Without either affirming or denying the correctness of the application to the facts in that case, of the proposition of law above quoted, which proposition is stated in the cases cited, to the effect, that the possession of life tenants and those holding under them is not adverse to the remainderman, we observe that we have now quite a different case. This is an action at law, and not in equity. We are now concerned with the legal title only; nor do we have to deal with the possession of one tenant in common, as against the others. The adverse possession here, which is claimed to have ripened into title against the plaintiffs, who claim to have taken remainders under the will, is not that of a tenant in common with them, nor of the life tenant.

In this case it is agreed as follows:

"The plaintiffs' evidence shows that the power granted by testator in the will to convey to the named trustees by the named executors was never executed. Here it was agreed by the plaintiffs and the defendants that the defendants and those under whom they claim and hold, had had continuous, open, notorious, exclusive, adverse possession (pedis possessionem) of the lands sued for, for 21 years next before the bringing of this suit, and that such possession was under claim

of ownership, and under color of title, but not under color of title or conveyance, from the plaintiffs."

This clearly distinguishes this case from that of Kidd v. Borum supra. Under these facts we think it clear that these plaintiffs could not recover; because if the legal title ever vested in them it was not by virtue of the will but by descent; and if by descent, it was unquestionably divested by the adverse possession for 21 years, admitted in the agreed statement of facts. If it be held that the will passed the legal title to the executors, it is admitted or shown that it never passed...