Gindrat v. Western Railway of Alabama

• Decision Date: 14 January 1891
• Citation: 96 Ala. 162,11 So. 372
• Parties: GINDRAT ET AL. v. WESTERN RAILWAY OF ALABAMA.
• Court: Alabama Supreme Court

11 So. 372

96 Ala. 162

GINDRAT ET AL. v. WESTERN RAILWAY OF ALABAMA.

Supreme Court of Alabama

January 14, 1891

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Ejectment by William E. Gindrat and others against the Western Railway of Alabama. Defendant had judgment, and plaintiffs appeal. Reversed.

W S. Thorington and Gindrat & Winter, for appellants.

H C. Semple, for appellee.

MCCLELLAN J.

This is an action of ejectment by the appellants against the appellee. The general affirmative charge was requested by both parties in the court below, refused to the plaintiffs and given for the defendant. The facts, as they appear from a deed put in evidence on the trial, and from an agreed statement, which, in connection with said deed, constituted the whole evidence adduced, may be summarized as follows: On July 17, 1845, John Nickel conveyed the land in controversy, together with several other lots, to John H. Gindrat, "to have and to hold unto himself, his heirs and assigns, forever, in special trust and confidence nevertheless." The deed proceeds: "For the sole and separate use, benefit, and behoof of Sarah E. Gindrat during the term of her natural life, and at her death said premises shall still be held in trust for her three children, to wit, Abraham Gindrat, Mary Elizabeth Winter, and William B. Gindrat, for and during the term of their natural lives, and at their death the same shall vest in the heirs at law or children of them, the said Abraham, Mary Elizabeth, and William B., that may be living at the time of their deaths: provided, always, and it is expressly provided and agreed by and between the parties, that the said trustee may, at any time, with the advice and consent of John Gindrat, the father of the said Abraham, Mary Elizabeth, and William B., sell and dispose of any or all of said lots for cash, or upon credit, as they may think proper; and it is further agreed and stipulated by and between the parties that should John Gindrat die leaving any of such trust property undisposed of in the hands of said trustee, then it shall be necessary for said trustee, before disposing of any portion of said trust property, to obtain the assent in writing of said cestui que trust to that effect." Of the grantees and beneficiaries mentioned in said deed, Sarah L. was the wife of John Gindrat; John H. Gindrat, the trustee, was their son, as were also Abraham and William B.; and Mary E. was their daughter. John died in 1851; Sarah L. in 1854; William B. in 1852, leaving no children; Abraham in 1884, leaving children, who are the plaintiffs in this action; and John H. Gindrat, the trustee, died in 1874. In July, 1845, after the execution and record of said deed, the Montgomery & West Point Railroad Company entered upon said property, "and inclosed and occupied the same, claiming it as its own, and was in the open, notorious, and exclusive possession of the same as its own, until it sold and conveyed it to certain trustees some time in 1856, by whom it was sold and conveyed to the defendant;" and the land has all the time, since the entry of the Montgomery & West Point Railroad Company upon it in 1845, and down to the commencement of this suit, been in the open, notorious, and exclusive possession, under claim of ownership, of said company and its assigns, including the defendant company, now in possession; and "was at the time of said entry uninclosed, and not in the visible possession of any one."

The deed of trust involved here was considered by this court in the case of Gindrat v. Gaslight Co., 82 Ala. 596, 2 South. Rep. 327; and it was there determined that, after the death of John Gindrat, the power of sale lodged in the trustee, John H. Gindrat, could be executed only with the assent in writing of Sarah L. Gindrat, who alone was considered to be the cestui que trust, within the last clause of the deed. It results from this construction that after the death of Sarah L. Gindrat, which, as we have seen, occurred in 1854, the trustee had no power to sell the property at all. There is no evidence of the execution of the power of sale in the lifetime of John Gindrat, who died in 1851, nor of its execution after his death during the lifetime of Sarah L. Gindrat, nor in fact of any conveyance of title at any time to the defendant, or those under whom it now claims by succession to such rights as the adverse possession of its predecessors conferred upon them. It is not pretended, of course, that this adverse possession, beginning, as it did, in the latter part of July, 1845, was of sufficient duration prior to the death of Sarah L. to have ripened into title upon which this action could be defended. The title, so far as appears in this record, was in the trustee up to the death of Sarah L. Gindrat. Whether it continued in him thereafter depends upon the character of the remainder over in fee, supported by the second estate or estates for life in Abraham, William B., and Mary Elizabeth. If the remainder to such of their children as should be living at the time of their death was a vested remainder, the trustee had no further duties to perform under the instrument. He had no power of sale after the death of Sarah L., as we have said. He had nothing to do with respect to the life estates based on the falling in of her estate. He was charged with no duties with respect to the remainders over in fee, since they, on the assumption upon which we are now proceeding, were vested estates, which could not be destroyed, and which therefore did not require or admit of his protection. Under the statute of uses, which is a part of the common law of this state, and reaffirmed by our own statutory provisions, (Code, §§ 1831, 1832,) the trust estate determined, under this assumption and these facts, at the death of Sarah L. Gindrat, and both the legal and beneficial title and estate then vested in the second life tenants and the tenants in final remainder, free from all interference and representation by the trustee. Horton v. Sledge, 29 Ala. 478; Schaffer v. Lavretta, 57 Ala. 14; Bercy v. Lavretta, 63 Ala. 374; You v. Flinn, 34 Ala. 409; Tindal v. Drake, 51 Ala. 574; McBrayer v. Cariker, 64 Ala. 50; Gosson v. Ladd, 77 Ala. 223; Webb v. Crawford, Id. 440.

Here, then, would be simply a life estate in Abram Gindrat, say, with remainder over in fee vested in the present plaintiffs. There is no privity between the tenant for life and the remainder-men. He does not, and did not, represent them in any wise or to any extent. No affirmative act of his could cut off their rights or divest their estates. A fortiori no omission of action on his part, no laches of which he may have been guilty as to defendant's possession of the land, no acquiescence in such possession, could at all affect the estate which they were entitled to come into the enjoyment of at his death. The possession of the defendant during his life, however long, notorious, open, adverse, and under claim of right against all the world, could not ripen into title, or afford a predicate for the presumption of a grant under the doctrine of prescription, as against these plaintiffs. At no time during the life estate could they, or any one for them, have questioned this possession; and no laches, in submitting to what they were without remedy to resist, can be imputed to them. It is not shown that defendant or its predecessors ever had a deed or color of title, and the predicate for the application of the doctrine laid down in Iron Co. v. Fullenwider, 87 Ala. 584, 6 South. Rep. 197, is therefore wholly lacking. The case is, in other words, the familiar one of a possession adverse and of long continuance pending a life estate, being relied on to defeat ejectment by the remainder-man brought within 10 years after he became entitled to the possession; and the authorities are uniform to the point that such possession is no bar to the action. Tied. Real Prop. § 715; 1 Amer. & Eng. Enc. Law, 237; Fleming v. Burnham, 100 N.Y. 1, 2 N.E. 905; Jones v. Freed, 42 Ark. 357; McCorry v. King's Heirs, 39 Amer. Dec. 165; Pickett v. Pope, 74 Ala. 122; Bass v. Bass, 88 Ala. 408, 7 South. Rep. 243; Allen v. De Groodt, 98 Mo. 159, 11 S.W. 240, 14 Amer. St. Rep. 626, notes 632, 635.

If however, the remainder over in fee was contingent, the doctrine stated above would have no application, at least so long as the contingency continued. In such case, the trustee would have active duties to perform in the protection of the contingent remainder, and would hold the legal title in trust for the remaindermen, and to become vested in them as they came into being. The trustee is thus the representative of the tenants in remainder. There is a privity between them and him. In the protection of their contingent interest he may interpose during the life estate, if need be, and to any extent necessary to that end. He has a right of entry in case of any wrongful alienation by the tenant for life, or whenever his estate for life determines in his lifetime by any other means than alienation. And being thus in privity with the remainder-men, and representing them for the preservation of the remainder, until the happening of the condition upon which it is to vest, his laches are laches of the tenant in remainder, acquiescence by him binds them, and adverse possession against him bars their right of entry. In the case at bar, the possession of the defendant, and those under whom it claimed, was such a destruction of the life estate, while the tenant of that estate was still alive, as entitled the trustee to enter for the preservation of the contingent remainders, which otherwise would be...