Appeal
from Shelby County Court; E.S. Lyman, Judge.
Suit by
Lula C. Borum against Douglas W. Kidd and others to quiet
title. From a decree for complainant, defendants appeal.
Reversed and rendered.
The
agreed statement of facts is as follows: "That John W
Kidd died in Shelby county, Ala., in 1865 Anno Domino, being
at the time of his death a resident thereof. That he was at
the time of his death the owner in fee of the lands described
in the second paragraph of the amendment to the bill. That
the said John W. Kidd left a last will and testament, in
which he disposed of said lands. That said last will and
testament was fully probated before the judge of the probate
court of Shelby county, Ala., on, to wit, the 17th day of
August, 1866, and recorded in the office of said judge of
probate in the manner prescribed by law. Record 'H'
at page 685. A true and correct copy of said will, except
punctuation marks, is attached to the answer of the
respondents as an exhibit thereto, and marked 'A.'
That the executors of the said will named therein failed to
qualify or to perform any of the duties or exercise any of
the privileges imposed upon or granted to them under said
will. That letters of administration cum testamento annexo
were issued upon said estate of John W. Kidd, but that said
lands were not subjected to the payment of decedent's
debts if there existed such. That Mary Georgiana Kidd, the
wife of John W. Kidd, mentioned and provided for in said will
is still living. That Douglas W. Kidd, John M. Kidd, James W
Kidd, and Anna Philida Kidd were the children of John W. Kidd
and his wife, Mary Georgiana Kidd, mentioned and provided for
in the third item of said will, and were all in existence at
the time of the testator's death. That one of said
children, John M. Kidd, was born after the making of the
will, but before the death of the testator. That said
children were infants of tender years at the death of the
said John W. Kidd. That two of said children named in said
will, James W. Kidd and Anna Philida Kidd, are dead. That
Douglas W. Kidd and John M. Kidd are still living, also the
wife, Mary Georgiana Kidd, has married again. That Anna
Philida Kidd, one of the deceased devisees under said will
and aforementioned, died unmarried and without issue leaving
surviving her three brothers aforesaid and her mother, Mary
Georgiana Kidd. That she died on to wit, the year 1887. That
James W. Kidd died on the 11th of April, 1909, leaving three
children, Thomas J. Kidd, Meeda T. Kidd, and James M. Kidd.
That he was also survived by his brothers aforementioned
Douglas W. Kidd and John M. Kidd, and his mother, Mary
Georgiana Kidd. That at the time of the making and execution
of the said last will and testament the 8th day of November
1858, and on the same day, the said testator John W. Kidd
made and executed a trust deed, which said trust deed is
referred to and mentioned in the said will, and said will is
mentioned and referred to in said trust deed. That said trust
deed purports to grant certain property therein mentioned
That said trust deed is made an exhibit to this statement of
facts and a part of this statement of facts as fully as if
incorporated therein, and as evidence in said cause. Said
trust deed is marked 'Exhibit I,' and hereto
attached. That the executors mentioned and named in the last
will and testament of the said John W. Kidd heretofore
referred to did not make any conveyance to the trustees
mentioned therein as they were directed to do by said will.
That said executors failed to qualify or do any act relative
to the estate of the testator, John W. Kidd. That the
administrators cum testamento annexo did not make any attempt
to convey said land to the trustees, nor was there any
conveyance of any land owned by the testator to the trustees
mentioned in said will, and the trustees never took
possession of or exercised any control over the land in
controversy or any other land of the testator. That Mary
Georgiana Kidd went into possession of said land, and held
same for and up to the time she conveyed same to one Robert
L. Flippin. That she held said land for about 15 years after
the death of the testator, John W. Kidd, and under said will.
That about the year 1880 Mary Georgiana Kidd made and
executed a warranty deed to Robert L. Flippin of the lands
here in controversy. That said deed was valid in so far as it
conveyed any right, title, or interest that Mary Georgiana
Kidd had in and to said land. That Robert L. Flippin under
said deed held said land for about 10 years, when he conveyed
same to his daughter, Lula C. Borum, the complainant herein.
That Lula C. Borum, together with her husband, has held said
land under deed since its execution for a period of more than
20 years. That the deed given by Mary Georgiana Kidd to
Robert L. Flippin purports to convey a fee, and that said
deed was valid upon its face. That the deed given by Robert
L. Flippin to Lula C. Borum purported to convey a fee, and
was valid upon its face. That both of the deeds just referred
to purported to be warranties and as such were valid upon
their face. That Robert L. Flippin under his deed from Mary
Georgiana Kidd went into immediate possession and held said
land for 10 years in actual, notorious, and exclusive
possession, and during such time did not recognize or admit
the title of the respondents or any other party, but, on the
contrary, denied that any person whatsoever had any rights in
and to said land. That Lula C. Borum has been in actual
notorious, continuous, and exclusive possession of the land
during the time since she went into possession more than 20
years prior to the filing of her bill, and that during said
time she has not recognized or admitted any right, title, or
interest of the respondents. That Robert L. Flippin and Lula
C. Borum have paid the taxes upon said land during the time
aforementioned. That the two deceased devisees, James W. Kidd
and Anna Philida Kidd, died intestate, and left no debts.
That the original will and trust are offered in evidence as a
part of the facts of the case and evidence of the cause. That
said original will and trust deed be received in evidence as
if fully incorporated in this statement of facts. That the
copy of the will (Exhibit A) attached to the answer of the
respondents is correct, except that there are no punctuation
marks in the third item of the will beginning with the words,
'I hereby give and bequeath unto my said beloved
wife' and down through the said item of said will. That a
true and correct copy of the trust deed made by John W. Kidd
contemporaneously with the execution of the will is hereto
attached as an exhibit to and as a part of this statement of
fact. That same may be considered as the original trust deed.
That same is marked 'Exhibit I.' That, if the
original will and trust deed are not produced, the copies
attached may be received as evidence the same as the
originals, with the above qualification as to the punctuation
of the will. That the respondents as devisees under said
will, and as heirs at law of the deceased devisees in said
will, claim a valid and subsisting vested remainder under
said will to the lands in controversy."
The
following is the deed of trust: "This indenture made and
entered into this 8th day of November in the year of our Lord
1858, between John W. Kidd, of the first part and John M
Kidd and William Singleton, of the second part, all of the
county of Shelby, state of Alabama, witnesseth: That whereas,
the said John W. Kidd, the party of the first part, has been
twice married and has children by each marriage; that his
children by his first marriage are all grown up and left him,
and he has by way of advancement, given off to them a
considerable portion of his estate, and is desirous to his
present wife and her children by her. Now, for and in
consideration of the love and effection which the said party
of the first part has and bears for his present wife, Mary
Georgiana Kidd, and my sons by my said beloved wife, William
Douglas, James White, and daughter Anna Philida, and the
further consideration of five dollars by the parties of the
second part to me, the party of the first part, in hand paid,
the receipt whereof is hereby acknowledged, the said party of
the first part has sold and does hereby sell and convey unto
the said parties of the second part the following described
lands and property, to wit: All of my home tract of land
lying near and adjoining the town of Harpersville, and
embracing section (32) in township (19) and range (2) east,
except a small portion sold off as town lots and the
graveyard and forty acres in section four, and forty acres in
section five, and seventy six acres in section twenty-eight,
and seventy six acres in section thirty three, all in
township 20, range 2 east; my entire home tract containing
eight hundred and sixty acres; and the following named negro
slaves, to wit: a negro woman, Martha, about 30 years old,
and her five children, William about eleven years old, Martha
about eight years old, Elbert about six years old, Sallie
about four years old, and Smith about three years old. Also
Mark, a man about 30 years old, and Early about 17 years old,
and Charles about 15 years old, and Franklin about 20 years
old, and Isiah about 22 years old, and Emma about 16 years
old, and Elijah about 60 years old. To have and to hold in
trust as follows, to wit: in trust for the use, support and
maintenance of said beloved wife Mary Georgiana, and children
William Douglas, James White, and Anna Philida, during the
natural life of my said wife, remainder after her death in
absolute right to my said children above named, and in the
event my said wife should...