Love v. Butler

• Decision Date: 16 April 1901
• Citation: 30 So. 735,129 Ala. 531
• Parties: LOVE ET AL. v. BUTLER ET AL. [1]
• Court: Alabama Supreme Court

30 So. 735

129 Ala. 531

LOVE ET AL. v. BUTLER ET AL. ^[1]

Supreme Court of Alabama

April 16, 1901

Appeal from chancery court, Lawrence county; Wm. H. Simpson Chancellor.

Bill by W. S. Butler and others against Victoria Love and others. From a decree overruling a demurrer to the bill and denying a motion to dismiss, defendants appeal. Reversed.

The complainants claim to be the owners of two-fourths interest in certain lands specifically described in the complaint, as devisees under the will of said General Butler, deceased which will, as averred in the bill, was duly admitted to probate in the probate court of Lawrence county. The items of said will having reference to the questions involved in the present litigation, were as follows: "(1) I give and devise to my beloved wife, Matilda, all of my estate consisting of lands, horses, mules, cows, hogs, sheep, and any property in my possession at my death. Also at my death I give her leave to sell the land if she cannot manage to pay for it. (2) At the death of my wife, Matilda, I desire all my property to be sold and divided, each set of children to have their father's and mother's part," etc. The prayer of the bill was as follows: "That these complainants be decreed entitled to a two-fourths undivided interest in said land; that the said Jackson V. Love and his wife, Victoria Love, be directed to convey to these complainants an undivided two-fourths interest in said land and, their failing therein, direct the conveyance to be made by the register of this court; and they pray for such other, further, and general relief as they may be entitled to under the facts of this case." To this bill the respondent demurred, and assigned as grounds of demurrer: (1) Staleness of demand; (2) that the complainants' claim was barred by the statute of limitations of 10 years; (3) that Jackson V. Love had acquired title to the land by adverse possession of 10 years. The respondents also moved to dismiss the bill upon the same grounds, and also upon the further ground of want of equity in the bill.

Arthur L. Brown, for appellants.

Kirk & Rather, for appellees.

TYSON J.

It seems to be conceded-at least not questioned-that Matilda Butler, the widow of the testator, took a life estate in the land under the will of her husband, and the complainants took a remainder. Butler, the testator, purchased the land by paying $2,000 in cash and executing his two promissory notes for $2,000 each, and went into possession. He paid one of the notes, and made a partial payment on the other, leaving a balance due upon it of some fourteen or sixteen hundred dollars at the date of his death, in 1879. The sale and purchase was effectuated by the payment of the cash and the execution of the notes by Butler to the vendors, who executed to him a bond for title covenanting to convey title to him of the land upon the payment by him of the purchase-money notes. On the 16th day of April, 1881, the life tenant paid to the vendors the balance of the purchase money, and they executed to her a deed to the land, conveying the legal title thereto. On the 18th day of April, 1881, Matilda Butler executed a deed to one of the respondents-J. V. Love-conveying the legal title to the land to him. To life tenant died in the year 1884 or 1885. Love immediately took possession of the land under the conveyance to him, and remained continuously in the possession of it up to March, 1897, collecting the rents for it, when he was declared a non compos mentis, since which time his wife has been in the possession of it collecting the rents. This bill was filed July 18, 1900. From the foregoing statement of facts it will be observed that nearly 15 years elapsed between the death of the life tenant and the filing of the bill, and nearly 19 years since the execution of the deeds by the vendors to Matilda Butler and by her to Love. These conveyances were recorded, respectively, April 21 1881, and April 23, 1881. The theory of the bill is that the vendors, by reserving the legal title to the land as a security for the payment of the purchase money, were trustees for the testator, and that after his death they became trustees for the complainants, as remainder-men under his will; that by the acceptance of the deed from them Matilda Butler acquired the legal title to the land subject to the trust, and became a trustee, and that Love also became a trustee by acquiring the legal title from her, it being averred that he had full knowledge of the facts. The main defense invoked by the demurrer to the bill is the statute of limitations of 10 years. "The vendor of lands, not parting with his estate, retains it as a security for the payment of the purchase money. To the contract of sale, in such case, all the essential ingredients of a mortgage attach." Stringfellow v. Ivie, 73 Ala. 209; Hester v. Hunnicutt, 104 Ala. 285, 16 So. 162. In Bankhead v. Owen, 60 Ala. 467, it is said: "There can be no just and proper distinction drawn between a mortgage to secure the payment of the purchase money, executed contemporaneously with the conveyance of the land, and a reservation of the legal estate, as a security for its payment." In Conner v. Banks, 18 Ala. 44, 52 Am. Dec. 210, this principle is stated in this language: "It is a well-settled rule that the vendor of real estate, who has not executed a deed to the purchaser, holds the legal title as a security for the payment of the purchase money; and if he has executed a bond to make titles when the purchase money is paid the contract in a court of equity will be considered in the nature of a conveyance to the purchaser, and a reconveyance back, by way of mortgage." To the same effect are Haley v. Bennett, 5 Port. 452; Chapman v. Chunn, 5 Ala. 397; Kelly v. Payne, 18 Ala. 371; Lowery v. Peterson, 75 Ala. 109. It is clear from the principles announced in the cases cited above that the reservation of the legal estate by the vendor as a security for his debt is in equity nothing more than an equitable mortgage. The vendee is the owner of the land, and on his death it descends to his heirs, or to...