Dallas Compress Co. v. Smith

• Decision Date: 17 December 1914
• Docket Number: 566
• Parties: DALLAS COMPRESS CO. et al. v. SMITH.
• Court: Alabama Supreme Court

67 So. 289

190 Ala. 423

DALLAS COMPRESS CO. et al. v. SMITH.

No. 566

Supreme Court of Alabama

December 17, 1914

Appeal from City Court of Selma; J.W. Mabry, Judge.

Bill to quiet title and for an accounting by James Q. Smith against the Dallas Compress Company and others. Decree for complainant, and respondents appeal; complainant filing cross-appeal. Affirmed on both appeals.

Pitts &amp Leva, Partridge & Hobbs, and Keith & Wilkinson, all of Selma for appellants.

Horace C. Wilkinson, of Birmingham, for appellee.

SAYRE J.

Appellants in this case appear to have acquired their claim to the property in controversy in reliance upon a construction of the marriage settlement which would give appellee's mother, the widow of the settlor, the right under the terms of the settlement to dispose absolutely of the property after the settlor's death. We consider this question to have been determined against appellants in the case of Smith v. Turpin, 109 Ala. 689, 19 So. 914. The argument of this contention in the present case depends, as it did in the case cited, upon a strict grammatical construction of the terms of the settlement. If we were permitted to look beyond the record in this cause to the report of the cited case, and so to discover the identity of the parties to the two settlements, we might be tempted to cast about for the reasons for two separate settlements between the same parties on the same day. Nothing appears to account for the fact unless the circumstance that the two settlements dispose of different landed estates situate in different counties may be accepted as a sufficient explanation. However that may be, we have at last nothing but the difference in the language of the two settlements upon which to base a conclusion that the restrictions upon the power of the first grantee to dispose of the gift were intended to operate differently. Looking to that difference, we are strongly impressed, as was the chancellor, that whatever difference there may be in the two settlements, construed strictly according to their grammatical structure, to which appellants appeal, makes against, rather than in favor of, appellants' contention that the necessity for the settlor's approval of any such disposition in the present case is limited merely to reinvestment after a sale or exchange of the property which, as the argument goes, might be made without that approval. As the court held in Smith v. Turpin, and the argument for the conclusion there reached applies with full force here, to so limit the necessity for the grantor's approval would hold for naught his purpose, evident upon the whole instrument, to preserve the remainder in the entire fee he was careful to provide for the issue of his marriage with the first taker.

It is urged in the next place that, even though Mrs. Smith had no power or right to dispose of the corpus of the estate granted, appellee's claim is barred by laches, prescription, and staleness, since more than 30 years have elapsed since her execution of the deed by which she undertook to convey an unlimited fee to Ikelheimer through whom appellants claim. We think this insistence is based in part upon a misconception of the character of the estate vested by the settlement in appellee. We are referred to Chandler v. Jost, 81 Ala. 411, 2 So. 82, followed under similar circumstances in Kidd v. Borum, 181 Ala. 144, 61 So. 100, Berry v. Hubbard, 30 Ala. 191, and Nimmo v. Stewart, 21 Ala. 682, as sustaining the proposition that the deed of settlement conveyed to Marie Louise Fair, with whom the settlor James Q. Smith, Sr., was about to contract marriage, and to appellee, the after-born child of that marriage, an estate in common for her life with remainder in fee to appellee. Of the remainder there is no question or doubt. But was appellee seised of an estate in common for the life of Mrs. Smith?

Berry v. Hubbard is without point. The deed there was to the wife "during her natural life," and to named children. The ruling was that the children took a present and immediate right of property and were not postponed until the death of the wife. In Chandler v. Jost it was held that by the husband's postnuptial conveyance of property, to the wife to have and to hold to her for the joint use of herself and named children and such other children as should be born to her, the wife took only a partial interest in the property as tenant in common with her children. In Nimmo v. Stewart, where the bill, as the court noted at the outset of its argument sustaining a plea of adverse possession, asserted a present interest in the subject of controversy, and was not one to protect a future interest or remainder, there was a bequest of slaves to trustees for the benefit of testator's daughter and her children, during her natural life, with remainder to the heirs of her body. The court, reciting the general rule that, if a devise be to one and his children, and he has children at the death of the testator, parent and children take immediately and jointly under the will, held that it applied in that case. It has been very generally held since Coke's time that a will or deed to a man and his children, he having none at the time of the devise or deed, gives him an estate tail, now by our statute converted into an unqualified fee. Shuttle & Weaver Land & Imp. Co. v. Barker, 178 Ala. 366, 60 So. 157. Plainly, however, the donor in the case at bar did not intend to give an unqualified fee, for he provided the remainder over, and still another limitation contingent upon the failure of children of the marriage.

We have thus far considered the status of the legal title created by the deed of settlement. From the further language of the gift a trust is to be implied for the support and maintenance of children of the marriage coextensive in duration with the life estate of the first taker, a charge upon the life estate the administration of which during the minority of appellee, to say the least, was in the nature of such things committed largely to the discretion of the first taker, and complainant--who takes an appeal from the chancellor's adverse ruling on this point--prays that a sum be set apart and taxed pro rata against defendants for his support and maintenance. Conceding that complainant might in his present circumstances fix a charge upon the land if it were still held by his mother, which seems doubtful (1 Perry on Trusts, § 118), still he has lost that right by the adverse holding of defendants. The right of support and maintenance out of the rents and profits of the life estate which complainant now asserts has been neglected from the time of the purchase by defendants more than 30 years before the filing of this bill and for more than 10 years of this time complainant has been of age. The purchase by defendants, their entry, and their adverse holding during this period was notice to the world of their repudiation of complainant's right, and he is now barred. Code, §§ 3091, 4846; Nimmo v. Stewart, supra; Abercrombie v. Baldwin, 15 Ala. 363; Fowler v. Ala. I. & S. Co., 164 Ala. 414, 51 So. 393.

The life tenant being still in life, complainant seeks protection for his legal estate in remainder by a decree avoiding the life tenant's deed so far as it purports to affect the remainder, and the equity of his bill in this regard has been sustained in the court below. Appellants, defendants below complain of this feature of the decree and ask us to consider, as a sufficient reason why this relief should have been denied on the face of the bill, that complainant's right of action accrued upon the execution of the deed, since which time they have been in adverse possession of the property. They say, in effect, that complainant took by the deed of settlement two rights, one of present enjoyment, the other of future enjoyment, both which were alike invaded by the conveyance to Ikelheimer; that the conveyance was as much an interference with complainant's future right as with his right in praesenti; and that complainant has all along been under equal duty to assert both rights because unquestionably he might have enforced his right to support and maintenance, and, they say, the doctrine that rights in remainder need not be asserted until the particular estate is determined is applicable only where no present interest...