Kidd v. Borum

Citation181 Ala. 144,61 So. 100
PartiesKIDD et al. v. BORUM.
Decision Date16 January 1913
CourtSupreme Court of Alabama

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...

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