Robinson v. Pierce

Citation24 So. 984,118 Ala. 273
Decision Date29 June 1898
CourtSupreme Court of Alabama

Appeal from circuit court, Montgomery county.

Bill by D. C. Robinson and others against W. H. Pierce and others to set aside conveyances of trust property in violation thereof and to enforce the trust. The bill was dismissed, and complainants appeal. Judgment was affirmed, and, pending a rehearing, complainants brought separate actions of ejectment to recover the same land against George W. Stone and W. H Pierce, defendants in the former suit. The three cases are considered together. Opinion in the first case modified, and judgments in ejectment, in favor of complainants, reversed.

Coleman J., dissenting.

The first of these cases was a bill filed by the appellants against the appellees, and the two other cases were actions of ejectment brought by the complainants in said bills against the defendants in the respective suits. In the chancery suit an appeal was taken from the decree of the chancellor, holding that the complainants were not entitled to the relief, and ordering the bill dismissed. The chancery suit was pending in this court, on application for rehearing at the time of the institution of the ejectment suits; and subsequently appeals were taken in the ejectment suits from judgments rendered therein. The same questions are involved in each of the suits, and they are submitted in this court together. The facts of the case are sufficiently stated in the opinion.

Pettus & Pettus, W. S. Thorington, Phares Coleman, and Alex T. London, for appellants Pierce and others, submitted the following propositions and authorities:

(1) The deeds to Wright and to Mrs. Pierce conveyed all the legal title of the lots to them. Hence the actions of ejectment cannot be maintained, without overruling the following Alabama decisions: Huckabee v. Billingsly, 16 Ala. 414; Marston v. Rowe, 43 Ala. 271, 286; McBrayer v. Cariker, 64 Ala. 50. See, also, Dawson v. Ramser, 58 Ala. 573. And also the following authorities, and decisions of other courts: 1 Perry, Trusts, § 315; 18 Am. & Eng. Enc. Law, 504, 505; Bank v. Benning, 4 Cranch, C. C. 81, Fed. Cas. No. 908; Den v. Troutman, 29 N.C. 155; Hales v. Griffin, 22 N.C. 425; Railroad v. Green, 68 Mo. 169; Reece v. Allen, 5 Gilman, 236; Dawson v. Hayden, 67 Ill. 52; Koester v. Burke, 81 Ill. 436; Gale v. Mensing, 20 Mo. 461; Taylor v. King, 6 Munf. 358; Harris v. Harris, Id. 367.

(2) The legal title being thus devested out of Welsh, and out of all for whom he held, it follows that only an equity remained in the issue or descendants or Mrs. Robinson, and that equity attached, and the bar commenced to run when the breach of trust was committed, namely, when the money was paid to the wrong person. The right of action accrued then. To hold otherwise would be to depart from and overrule the following authorities: Wormley v. Wormley, 8 Wheat. 42; Park v. Lide, 90 Ala. 246, 251, 7 So. 805; 2 Story, Eq. Jur. §§ 913, 919; 3 Pom. Eq. Jur. § 1334; Foley v. Burnell, 1 Brown, Ch. 274, 277; Smith v. Barham, 17 N.C. 425, 426; and the vast array of citations under head No. 3 of this summary, and in former briefs filed in this case.

(3) This equitable right of action accruing at that time, it was barred in 20 years. To hold otherwise would overrule the following decisions: Harrison v. Heflin, 54 Ala. 552; Molton & Henderson, 62 Ala. 426; Love v. Love, 65 Ala. 554; Clark v. Snodgrass, 66 Ala. 233, 243; Ryan v. Kilpatrick, Id. 332; Tayloe v. Dugger, Id. 444; Allen v. Kellam, 69 Ala. 442; Fielder v. Childs, 73 Ala. 567; Lee v. Wood, 85 Ala. 169, 4 So. 693; McInerny v. Irvin, 90 Ala. 275, 7 So. 841; Saltmarsh v. Crommelin, 24 Ala. 347; Dillingham v. Brown, 38 Ala. 311; Riggs v. Fuller, 54 Ala. 141; and all our decisions holding that 20 years is a complete bar to all rights which could have been asserted either at law or in equity. Authorities which shed light on the question that the right of the heirs to sue accrued immediately on the execution of the deeds, and the payment of the money to Mrs. Robinson: Molton v. Henderson, 62 Ala. 426, 431; Bryan v. Weems, 29 Ala. 423, 428; Love v. Love, 65 Ala. 554, 557; Clark v. Snodgrass, 66 Ala. 233, 243; Ryan v. Kilpatrick, Id. 332, 337; Matthews v. McDade, 72 Ala. 377; Mewburn's Heirs v. Bass, 82 Ala. 622, 2 So. 520. The right of action in the "issue" or descendents of Mrs. Robinson, accruing when the sale and conveyance were made to Mr. Wright, in 1854, to hold that the present action is not barred, will be not only to overrule the three cases specially mentioned by Justice McClellan, but the following long, unbroken line of this court's rulings, favoring the doctrine of repose. Is it safe to overturn this principle, which has worked so well and so satisfactorily? McArthur v. Carrie's Adm'r, 32 Ala. 75; Rhodes v. Turner, 21 Ala. 210; Gantt's Adm'r v. Phillips, 23 Ala. 275; Lay's Ex'r v. Lawson's Adm'r, Id. 377; Barnett's Ex'r v. Tarrence, Id. 463; Harvey v. Thorpe, 28 Ala. 250; Milton v. Haden, 32 Ala. 30; Blackwell v. Blackwell, 33 Ala. 57; Wyatt v. Scott, Id. 313; Roundtree v. Brantley, 34 Ala. 551; Nelson v. Goree's Adm'r, Id. 580; Fleming v. Gilmer, 35 Ala. 62; Austin v. Jordan, Id. 642; Harrison's Adm'r v. Harrison's Distributees, 39 Ala. 489; Marston v. Rowe, Id. 722; Worley's Adm'x v. High's Adm'r, 40 Ala. 171; White v. Hutchings, Id. 253; Kirby v. Kirby's Adm'r, Id. 492; McCartney's Adm'r v. Bone, Id. 533; Foster v. Chamberlain, 41 Ala. 158; Harrison v. Heflin, 54 Ala. 552; Goodwyn v. Baldwin, 59 Ala. 127; Ware v. Curry, 67 Ala. 274; Garrett v. Garrett, 69 Ala. 429; Matthews v. McDade, 72 Ala. 377; Holt v. Wilson, 75 Ala. 58; Kelly v. Hancock, Id. 229; Long v. Parmer, 81 Ala. 384, 1 So. 900; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732; Werborn v. Austin, 82 Ala. 498, 8 So. 280; Davis v. Railroad Co., 87 Ala. 633, 6 So. 140; Knabe v. Burden, 88 Ala. 436, 7 So. 92; Ross v. Goodwin, 88 Ala. 390, 6 So. 682; Duncan v. Williams, 89 Ala. 341, 7 So. 416; Semple v. Glenn, 91 Ala. 245, 6 So. 46, and 9 So. 265.

Conveyance of a trust estate by a trustee holding the legal title, though in violation of the trust, operates to devest subsequent estates in remainder.

Gunter & Gunter, for appellee Robinson, cited Smith v. Lord Camelford, 2 Ves. Jr. 698; Reade v. Reade, 5 Ves. 748; Doe v. Martin, 4 Term R. 65; Roach v. Wadham, 6 East, 305; Maundrell v. Maundrell, 10 Ves. 246; 4 Kent, Comm. *204, *316; Jackson v. Crafts, 18 Johns. 110; Harris v. Strodl, 132 N.Y. 392, 30 N.E. 962; Russell v. Russell, 36 N.Y. 581; Allen v. De Witt, 3 N. Y. 276; Bank v. Holden, 105 N.Y. 415, 11 N.E. 950; Scholle v. Scholle, 113 N.Y. 261, 21 N.E. 84; 2 Washb. Real Prop. 278; 2 Whart. Ev. §§ 1334, 1353; Lawson, Pres. Ev. 276, 277; Bailey, Onus Probandi, 257; U.S. v. Ross, 92 U.S. 284; Douglass v. Mitchell's Ex'r, 35 Pa. St. 440; Pope's Lessee v. Pickett, 65 Ala. 487, 74 Ala. 122; Tyler, Ej. pp. 102, 568, 569, 885; 2 Whart. Ev. § 1334-1357; Allen v. De Groodt (Mo. Sup.) 14 Am. St. Rep. 635 (s. c. 11 S.W. 240); McCorry v. King, 39 Am. Dec. 165; Wood, Lim. p. 528, note; Lawson's Adm'r v. Lay's Ex'r, 24 Ala. 184; Wyatt's Adm'r v. Rambo, 29 Ala. 510; Pickett v. Pope's Lessee, 74 Ala. 122.


On the 30th day of April, 1847, John Falconer, in consideration of $900 paid by Mary Jane Robinson, bargained, sold, and conveyed, by deed in fee, with warranty, unto Thomas Welsh the lands in controversy, situate in the city of Montgomery, Ala. "in trust and for the sole and separate use and benefit of the said Mary Jane Robinson during her natural life, and, at her death, to the issue of the said Mary Jane Robinson, by her marriage with her present husband, Seth Robinson, free from all liability for the debts, contracts, of her present or any future husband, with the power to bargain and sell and such assurances to make of the same to any person, on request of said Mary Jane Robinson, in writing, and invest the proceeds of the sale thereof in such property as the said Mary Jane Robinson may select, and the same to be held subject, in like manner, to the uses and trusts hereinbefore stated." On the 30th day of January, 1854, as the deed recites, said "Thomas Welsh, trustee for Mary Jane Robinson, for and in consideration of three thousand dollars, to the said Mary Jane Robinson in hand paid, by Nathaniel H. Wright, the receipt whereof is hereby acknowledged," by deed in fee, with warranty, granted, bargained, sold, enfeoffed, and confirmed unto the said Nathaniel H. Wright a certain part of said lands. This deed was signed and sealed by "Thomas Welsh, Trustee," and by said Mary Jane Robinson. At the same time, Seth Robinson, the husband of said Mary Jane, executed a quitclaim deed to said premises to said Wright. By mesne conveyances from Wright, this property was, in March, 1873, duly conveyed to the defendant George W. Stone, vesting in him all the title of the said Wright. Immediately after the execution of the Welsh deed to Wright, in 1854, he (Wright) took possession of the granted premises, as rightful owner; and he and those succeeding to his right and possession, including the defendant Stone, have since held independent and adverse possession thereof. On the 1st day of June, 1858, the said Thomas Welsh and his wife, by deed, quitclaimed all right, title, and interest in the remaining portion of said lands to said Seth Robinson; and, at the same time, Seth Robinson and his wife, the said Mary Jane Robinson, for and in consideration of $3,500 paid by Mary C. Pierce to the said Seth Robinson, conveyed the same by deed, in fee, with warranty, to said Mary C. Pierce, who went into immediate possession as owner, and held independent adverse possession...

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