Graham v. Graham

• Decision Date: 22 January 1921
• Docket Number: 3 Div. 383
• Citation: 205 Ala. 644,89 So. 25
• Parties: GRAHAM et al. v. GRAHAM et al.
• Court: Alabama Supreme Court

89 So. 25

205 Ala. 644

GRAHAM et al. v. GRAHAM et al.

3 Div. 383

Supreme Court of Alabama

January 22, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by D.M. Graham and others against Peter H. Graham and others, for the sale of certain lands for division and for other purposes. From a decree denying the claim of respondents to a portion of the land, and directing its sale for division, respondents appeal. Affirmed in part, and in part reversed and rendered.

McClellan and Somerville, JJ., dissenting.

W.P McGaugh, of Prattville, and Eugene Ballard, of Montgomery for appellants.

W.A Gunter and James J. Mayfield, both of Montgomery, for appellees.

PER CURIAM.

On a former appeal in this case (Graham v. Graham, 202 Ala. 56. 79 So. 450), it was held, upon the allegations of the original bill, that the deed of trust executed by William A. Graham, Sr., in 1875, to his wife, Mildred A. Graham, through the medium of Sims, as trustee, had never ripened into a title in Mildred A., but remained a mortgage security merely, the payment or satisfaction of which would be presumed, as a matter of law, from the lapse of more than 20 years after the law day thereof without any countervailing recognition of the existence of the debt, by payments thereon or otherwise, on the part of the mortgagor husband. From this view of the allegations of the bill, it resulted that the action of the trial court in overruling the demurrer to the bill was held erroneous, and the demurrer was sustained as to both alternatives of the bill, viz., as a claim of title in the heirs of Mildred A., and as a claim for an unpaid debt secured by the mortgage in question.

The cause was submitted on the amended bill and exhibits and the depositions of witnesses and the trial court decreed that the fee-simple title to the Autauga farm was in Mrs. Graham at and before the time of her death, under the operation of the deed of trust and actual possession thereunder by the wife.

A majority of the court--Chief Justice ANDERSON and Justices SAYRE, GARDNER, and BROWN--are of the opinion that the evidence fails to show that the possession of the land was held by Mrs. Graham, or by her husband for her, and that the principles of law stated by the court on the former appeal are still applicable and of controlling effect. The conclusion is that the mortgage debt and title of Mrs. Graham were presumptively extinguished by the lapse of more than 20 years after the law day, without recognition thereof by the mortgagor, and that at the time of Mrs. Graham's death in 1908 the fee-simple title was vested in Mr. Graham, her husband.

The result is that the Autauga farm property is not subject to partition in favor of the heirs of Mrs. Graham, and in so far as the decree of the trial court grants relief as to that property it is erroneous, and must be reversed, and a decree will be here rendered adjudicating the title thereto in favor of the alienees of William A. Graham, Sr., viz. Peter H. and William A. Graham, Jr., and those claiming under them.

In so far as the decree and orders of the trial court are operative upon the Montgomery farm, they will be affirmed.

Reversed and rendered in part, and affirmed in part.

THOMAS, J., not sitting.

McCLELLAN J.

McClellan, J. is of the opinion that the evidence shows such a possession in Mildred A. Graham as to rebut the presumption of payment of the mortgage debt, and so to remove the case from the operation of the principles and conclusions of law held as controlling on the former appeal on the pleadings. He holds that the mortgage is still of force, and would grant relief under the alternative aspect of the bill, which seeks relief by its foreclosure.

SOMERVILLE, J. (dissenting).

I think that the bill as now amended, in its primary alternative, contains allegations of fact sufficient to show a paramount legal title in Mildred A. Graham at the time of her death, and in her legal heirs thereafter, and that the evidence sustains the decree granting relief in that aspect of the bill. The following principles and considerations are pertinent to the conclusion I have reached with respect to the title involved:

1. Nothing appearing to the contrary, it will be presumed that the $10,000 of the wife's property derived from her father's estate, and appropriated by the husband to his own use in 1871, was her statutory estate. De Bardelaben v. Stoudenmire, 82 Ala. 574, 2 So. 488; Bolman v. Overall, 86 Ala. 168, 5 So. 455.

2. This estate could not, by any contract or agreement between husband and wife, be converted into an equitable separate estate, free from the trusteeship and claims of the husband. Hence the mortgage of 1875, though it in terms conveyed the Autauga land, and its proceeds, if sold, to the sole and separate use of the wife, was not effective to that end, and the mortgaged land became, as to her interest therein, her statutory estate. Farrior v. N.E.M. & S. Co., 92 Ala. 176, 9 So. 532, 12 L.R.A. 856; Loeb v. McCullough, 78 Ala. 533; Coleman v. Smith, 55 Ala. 368.

3. In order to vest title and authority in Leonard Sims, named in the mortgage as the grantee in trust for the wife, it was necessary that he should accept the trust, and such acceptance would be readily implied, especially after the lapse of many years, from circumstances having but very slight probative value. Kennedy v. Winn, 80 Ala. 165; 20 R.C.L. 1191, § 28. In the instant case, it does not appear that Sims ever even knew of the existence of this mortgage, and it affirmatively appears that he never did a single act in recognition of his trusteeship, or in relation to its subject-matter, and that he died within about three years after the execution of the mortgage. It must be held, therefore, that such title and power as were granted by the deed never vested in Sims as trustee.

4. It is a favorite maxim of equity that "no trust can be permitted to fail for want of a trustee." Blakeney v. DuBose, 167 Ala. 627, 637, 52 So. 746, 749; Whitehead v. Whitehead, 142 Ala. 165, 37 So. 929. Hence, in cases like this, equity will deal with the trust conveyance in such wise as to give to it the operation and effect which the grantor intended it should have. Michan v. Wyatt, 21 Ala. 813, 828.

5. Under the statutes in force in this state down to the Married Woman's Act of 1887 (Code 1852, § 1983; Code 1876, § 2706), the statutory separate estate of the wife was vested in the husband, as her trustee, with the right to manage and control without accountability for the rent, income and profits. De Bardelaben v. Stoudenmire, 82 Ala. 574, 2 So. 488. Hence, by force of the statute, this mortgage to the use of the wife vested in the husband, as trustee, the legal title to the land, with all the incidental rights of possession, control and use, subject, of course, to the equitable rights of the husband, as mortgagor, after the law day of the mortgage, January 1, 1876.

6. After the law day of the mortgage, the husband, as mortgagor, had no right, as against the wife or her trustee, to retain the possession of the land. In that capacity he had nothing but an equity of redemption, cognizable only in a court of equity, and only for the purpose of effecting such a redemption. Toomer v. Randolph, 60 Ala. 360; Coyle v. Wilkins, 57 Ala. 108. It is true that this court has occasionally said, as in Baldwin v. Hatchett, 56 Ala. 461, that a mortgage is nothing but a security for a debt, which was true enough for the purposes of that case. That a mortgage title after default is thus qualified is refuted by a long line of cases decided by this court. Fields v. Clayton, 117 Ala. 538, 23 So. 530, 67 Am.St.Rep. 189.

7. "The universal principle is that, when two persons are in the joint possession of property, the title being in one, the law refers the possession to the title." Newbrick v. Dugan, 61 Ala. 253; Lanoir v. Rainey, 15 Ala. 667; Governor v. Campbell, 17 Ala. 566; Bragg v. Massie, 38 Ala. 89, 79 Am.Dec. 82; Scruggs v. Decatur M. & L. Co., 86 Ala. 173, 5 So. 440; Wells v. A.M. Co., 109 Ala. 430, 444, 20 So. 136; Stiff v. Cobb, 126 Ala. 381, 28 So. 402, 85 Am.St.Rep. 38. This means, of course, the legal title, since an equitable title never carries the right of possession as against the legal title.

8. On January 1, 1876, the husband, as mortgager, had but an equity in the land--a right to redeem, enforceable only in a court of equity upon bill filed for that purpose. As statutory trustee for his wife, he held a perfect legal title, with the right of possession and enjoyment. Assuming that there is no legal evidence to show an ostensible change in the character of the husband's possession after the law day, will the law presume that he continued to hold as mortgagor, or will it presume that he thereafter held as statutory trustee for his wife? The answer to this question, if it affirms the latter alternative, is decisive of the controversy as to title presented by the bill and answer. As already noted, the possession, as between two distinct individuals in joint occupation, is always imputed to the individual with the legal title. If the possession be in a single individual, who occupies two distinct relations to the land, the one founded upon a mere equity to redeem, without any possessory right, except as to strangers, and the other upon a perfect legal title, with an absolute right of possession, upon every principle of logic and propriety the same rule of law is applicable as if the possessor were two distinct individuals; and the legal effect of such a possession, if not distinctly repudiated. is a holding as trustee under and by virtue of his legal title as such. In such a case a ceremonial livery...