Milam v. Coley

• Decision Date: 22 November 1905
• Citation: 144 Ala. 535,39 So. 511
• Parties: MILAM v. COLEY.
• Court: Alabama Supreme Court

39 So. 511

144 Ala. 535

MILAM v. COLEY.

Supreme Court of Alabama

November 22, 1905

Appeal from Circuit Court, Tallapoosa County; A. H. Alston, Judge.

"To be officially reported."

Action by A. J. Coley, administrator of A. J. Coley, Sr., against S O. Milam. From a judgment for plaintiff, defendant appeals. Reversed.

D. H Riddle, for appellant.

W. M Lackey and Geo. A. Sorrell, for appellee.

DOWDELL J.

In an action like the present, where the rights of parties to the possession of the land are to be determined on the question of the legal title, the doctrine of equitable estoppel has no application. It appears from the record that in 1877 Nolen sold the land in question to Burks, giving him bond for title and placing him in possession. Burks, while in possession under Nolen's bond for title, mortgaged the land to A. J Coley, Sr., plaintiff's intestate, to secure the payment of $250, due December 25, 1878. Burks having failed to pay any part of the purchase money to Nolen, the latter, with Burks' consent, sold the land to D. M. Milam (the husband of the appellant) and placed him in possession. The said Milam having paid all the purchase money to Nolen, the latter executed to him a deed of conveyance therefor, dated October 15, 1881. On the 12th day of April, 1886, D. M. Milam being then in the possession of the land under his deed from said Nolen, conveyed the land to his wife, the appellant here, for love and affection. In 1894 the appellee here, as administrator of A. J. Coley, deceased (Burks' mortgagee), filed his bill in equity for a foreclosure of the Burks mortgage, making Burks and D. M. Milam parties defendant, and thereafter obtained a decree subjecting the land to sale by the register. The appellant here, Mrs. Milam, in whom the legal title to the land resided at the time of the filing of the bill, was not made a party to the bill. At the register's sale, A. J. Coley, the appellee, as administrator of A. J. Coley, Sr., deceased, became the purchaser and received the register's deed, dated December 13, 1897. On the 6th day of January, 1903, the appellee brought the present action against the appellant, Mrs. Milam, for the recovery of the land. The defendant pleaded not guilty.

While the deed from D. M. Milam to his wife, of April 12, 1886 under the married woman's law as it then existed in this state, operated to convey to her an equitable title only, the legal title remaining in the husband, still under the operation and influence of the act of February 28, 1887 (Acts 1886-87, p. 80; Code 1896, § 2520), the legal title became vested in the wife, as between the husband and the wife. Gunn v. Hardy, 107 Ala. 609, 18 So. 284; Connolly v. Mahoney, 103 Ala. 568, 15 So. 903; Maxwell v. Grace, 85 Ala. 577, 5 So. 319; Ramage v. Towles, 85 Ala. 588, 5 So. 342; Rooney v. Michael, 84 Ala. 585, 4 So. 421; Bruce v. Bruce, 95 Ala. 563, 11 So. 197; Turner v. Bernheimer, 95 Ala. 241, 10 So. 750, 36 Am. St. Rep. 207; Scharf v. Moore, 102 Ala. 468, 14 So. 879. By the decree of the chancery court the appellee was invested with whatever title or interest Burks or D. M. Milam may have had in the land; but, as Mrs. Milam was not a party to the chancery suit, the decree could in no sense affect her rights. At the time of the filing of the bill in...