Prewitt v. Ashford

• Court: Alabama Supreme Court
• Writing for the Court: SOMERVILLE, J.
• Citation: Prewitt v. Ashford, 90 Ala. 294, 7 So. 831 (Ala. 1890)
• Decision Date: 21 May 1890
• Parties: PREWITT v. ASHFORD.

7 So. 831

90 Ala. 294

PREWITT v. ASHFORD.

Supreme Court of Alabama

May 21, 1890

Appeal from circuit court, Lawrence county; H. C. SPEAKE, Judge.

J B. Moore and W. P. Chitwood, for appellant.

D D. Shelby for appellee.

SOMERVILLE J.

The action is one of statutory ejectment. The court, on the trial below, gave the general affirmative charge to find for the defendant; and the verdict of the jury was, accordingly, so rendered. The evidence in behalf of the plaintiff, Prewitt who is the appellant here, made out a prima facie case of title in him, such as would authorize a recovery unless his case was overthrown by the countervailing evidence of the defendant, Mrs. Ashford. It was as follows: (1) A warranty deed from Richard Prewitt to Josephine Prewitt, dated April 27, 1866; (2) a deed from Josephine Prewitt to the plaintiff, W. V. Prewitt, dated February 6, 1883; (3) the fact of uninterrupted possession under these deeds from April, 1866, to March 3, 1888, which was within a few weeks of the time the present suit was brought; (4) a quitclaim deed from Caroline Ashford to Richard Prewitt, the original owner, dated November 23, 1875. This deed was delivered as an escrow to J. B. Moore, to be by him delivered to the grantee in the event of the affirmance by the supreme court of the decree rendered in the case of Liles v. Prewitt, involving litigation concerning the lands in controversy. This event happened October 11, 1881. Richard Prewitt died November 23, 1882, and the deed was delivered to his heirs in the year 1887.

It is not denied that this makes a prima facie case for the plaintiff. It is sought, however, to destroy the force of this chain of title by showing that on March 12, 1877, while the escrow deed of Mrs. Ashford was in the hands of Moore, awaiting delivery, and before the affirmance of the judgment in Liles v. Prewitt, in October, 1881, the event on which it was to be delivered, the legal title to the land was transferred from Richard Prewitt and his wife, Josephine Prewitt, to Mrs. Ashford, the defendant, by decree of the chancery court of Lawrence county. To show this, a decree of that court is introduced in evidence, rendered March 12, 1877, and affirmed on appeal to this court in the year 1879, which purports to accomplish this result. On a bill filed by Mrs. Ashford against said Richard Prewitt and wife, and others, claiming an equity in said lands by reason of the alleged fact that her husband, Thomas H. Ashford, had bought and paid for them with money belonging to the complainant's statutory separate estate, this equity was established, and a decree rendered declaring that "the legal and equitable title in and to" said lands "be, and the same are hereby, divested out of the defendants in said cause, and are vested absolutely in said complainant, Mrs. Ashford." It is further contended by the defendant that this title thus acquired by Mrs. Ashford in March, 1877, did not pass to Richard Prewitt or his heirs under the escrow deed in November, 1875, and delivered in 1887. The contention is that this decree was res adjudicata as to the title in question, because the escrow deed was a part of a compromise between the parties litigant made pendente lite, and that it should have been brought to the attention of the chancery court by a supplementary answer, in accordance with the general rule declared in May v. Coleman, 84 Ala. 325, 4 South. Rep. 144, as applicable where a pending suit is compromised.

It is manifest, then, in view of this state of facts, that the plaintiff's title must prevail in either of two cases: (1) If the decree of March, 1877, did not in fact operate to divest the legal title out of Richard Prewitt, and proprio vigore transfer it to Mrs. Ashford; or (2) if it did so divest and transfer it, and nevertheless the escrow deed from her to Richard Prewitt operated on delivery to relate back so as to vest such title in him, and this title passed, under his warranty deed of April, 1866, eo instanti, to Mrs. Prewitt, and thence, by her deed of February, 1883, to the plaintiff. The plaintiff insists on each of these contentions; and we repeat that, if either of them be correct, he was entitled to a verdict on the evidence contained in the record.

As to the first proposition. The chancery decree of March, 1877 did not, in our opinion, operate to vest the legal title of the lands in Mrs. Ashford, although it imports, in express terms, to do so. The reason is that a chancery court, apart from the power conferred by statute, possesses no jurisdictional authority to divest, by mere decree, a title out of one party litigant, and vest it in another. A decree was not itself a legal title, and never operated proprio vigore to vest or divest title, according to the original principles of equity jurisprudence. It operated only in personam, on the parties, and never in rem, on the subject-matter in controversy. This rule is well settled. 1 Pom. Eq. Jur. §§ 135, 170, 428; 3 Pom. Eq. Jur. § 1317. The statute recognizes only two modes in which a decree may divest title out of one party, and vest it in another, in cases of conveyance, release, or acquittance: (1) Where the chancellor decrees that the party shall convey, release, or acquit by a time specified in his decree, and he fails to do so. In this event, "such decree operates in all respects as fully as if the conveyance, release, or acquittance was made." (2) Where such decree has...