Jenkins v. Woodward Iron Co.

• Decision Date: 03 June 1915
• Docket Number: 2
• Citation: 194 Ala. 371,69 So. 646
• Parties: JENKINS et al. v. WOODWARD IRON CO.
• Court: Alabama Supreme Court

69 So. 646

194 Ala. 371

JENKINS et al. v. WOODWARD IRON CO.

No. 2

Supreme Court of Alabama

June 3, 1915

Rehearing Denied June 30, 1915

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Suit by Lettie Jenkins and others against the Woodward Iron Company. Decree for defendant, and complainants appeal. Reversed, and decree rendered.

A. &amp F.B. Latady, of Birmingham, for appellants.

V.J Nesbit, of Birmingham, for appellee.

SOMERVILLE J.

The bill of complaint shows that complainants' mother owned a remainder interest in the land in suit, to become vested in her or her heirs upon the death of her father, the life tenant. The said mother died in 1881, leaving a husband, who still survives. Her said father died in 1890. The bill is filed by complainants, as heirs of their mother, against respondent, who is in possession of the land as grantee by mesne conveyances of a fee-simple estate from their grandfather, the said life tenant; and its purpose is to have the title and interest of complainants declared as against the claim of respondent.

Complainants base the equity of their bill upon the theory that, upon the death of their mother in 1881, their father acquired a statutory estate in the nature of curtesy, which left to complainants only an estate in remainder; and hence, pending this life estate in their father, they have been and still are unable to test their title by an action at law to recover possession of the land. We think this view of the case is correct, and must result in affirming the equity of the bill, and also in refuting the validity of that ground of the demurrer based on the supposed operation of the statute of limitations of 10 years. Dake v. Sewell, 145 Ala. 581, 39 So. 819; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73; Lansden v. Bone, 90 Ala. 446, 8 So. 65; Worthington v. Miller, 134 Ala. 420, 32 So. 748.

The case of complainants rests, of course, on their mother's acquisition of title from her father, and this depends upon the sufficiency of the conveyance she received from him. Its sufficiency is attacked by several of the grounds of demurrer, which we must hold are without merit.

(1) It is true the deed in question conveys the land by numbers merely, without designating either county or state. But the bill of complaint shows that the grantee at that time owned and was in possession of lands in Jefferson county, Ala., described by these identical numbers; and, it not appearing that he then owned other lands described by these numbers, the identification is sufficient, and the conveyance will be pronounced valid. Chambers v. Ringstaff, 69 Ala. 140. And this results without the aid of judicial notice of the location of land of corresponding numbers in the government survey of the state.

(2) The conveyance is in the usual form of bargain and sale, with habendum, and it stipulates:

"That said deed is not to become operative until the death of the grantors, but the grantors are to retain the possession *** until their death, at which time the parties or their heirs are to take the *** land into their possession and control."

This was clearly a deed of present conveyance to the grantee, with reservation of possession only in the grantors during their lives. Phillips v. Phillips, 186 Ala. 545, 65 So. 49.

It results that the demurrer was not well grounded, and should have been overruled.

We presume that the learned chancellor may have ruled against the equity of the bill upon the theory that for want of seisin in the wife during coverture, her estate being in remainder, the husband's marital estate never attached, and hence that complainants were invested with the full legal title of their mother upon her death, with the right to sue at law upon the termination of their grandfather's life estate. Prior to our statute (Code 1852, § 1990; Code 1907, § 3765), the husband's interest being the common-law estate by the curtesy, the wife's seisin in fact or in law during the coverture was a necessary incident to that estate. Bank v. Davis, 31 Ala. 631; Baker v. Flournoy, 58 Ala. 650; Carrington v. Richardson, 79 Ala. 101.

By the Code of 1852 (section 1990) it was provided that:

"If a married woman having a separate estate, die intestate, leaving a

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