Washington v. Norwood

• Decision Date: 05 April 1901
• Citation: Washington v. Norwood, 128 Ala. 383, 30 So. 405 (Ala. 1901)
• Parties: WASHINGTON v. NORWOOD.
• Writing for the Court: DOWDELL, J.
• Court: Alabama Supreme Court

30 So. 405

128 Ala. 383

WASHINGTON v. NORWOOD.

Supreme Court of Alabama

April 5, 1901

Appeal from chancery court, Jackson county; William H. Simpson Chancellor.

Bill by J. F. Washington, administrator, against S.W. Norwood. Decree for defendant, and plaintiff appeals. Reversed.

J. E Brown and Martin & Bouldin, for appellant.

Norwood & Tally, for appellee.

DOWDELL J.

The bill in this case is filed by the appellant, J. F Washington, as administrator of William Washington, deceased to set aside an alleged fraudulent conveyance and to subject certain lands in the hands of the alleged fraudulent grantee to the payment of the debt due from the grantor to the complainant's intestate. The bill and exhibits show the following state of facts: In April, 1878, Henry Bunn died intestate in Jackson county, Ala., leaving a large estate, consisting of real and personal property. On the 1st day of June, 1878, letters of administration were duly and regularly issued by the probate court of said county to John P. and Joel S. Timberlake as administrators of said estate, who entered upon the administration, having executed a bond in the sum of $50,000, with William Washington, complainant's intestate, J. F. Martin, T. M. Allison (who are not sued, they being dead and their estates insolvent), and Samuel C. Norwood, respondent's grantor, as sureties. On the 11th day of August, 1892, said administrators made a final settlement in the probate court of said county, and decrees were rendered in favor of Beulah Bunn and John T. Bunn, minor heirs of said estate, for the respective amounts due on their distributive shares. On the 6th day of February, 1893, said decrees not having been paid, said Beulah and John T. Bunn filed their bill in chancery against said administrators, and J. F. Washington, as the administrator of the estate of William Washington, deceased, to enforce the collection of their said decrees. On the 7th day of May, 1898, said cause proceeded to final decree in the chancery court against said Washington, as administrator, in favor of said Beulah Bunn and John T. Bunn, for the amount of their said decrees in the probate court, and which the complainant was compelled to and did pay. The present bill proceeds upon the theory that Samuel C. Norwood was liable to the complainant as co-surety with his intestate on said administration bond, by way of contribution, to the amount of one-half of said decrees, and seeks to condemn the lands owned by him at the time of the execution of said bond, and subsequently conveyed to his son, Samuel W. Norwood, the respondent, which said conveyance is alleged to be voluntary, fraudulent, and void. The alleged fraudulent conveyance of Samuel C. Norwood to S.W. Norwood was executed on the 17th day of May, 1887. The present bill was filed on May 6, 1899. To this bill the respondent pleaded adverse possession of the land sought to be condemned since the date of said alleged fraudulent conveyance of May 17, 1887, and the statute of limitations of 10 years, in bar of the suit. The cause was heard on the sufficiency of said plea, and from the decree of the chancellor sustaining its sufficiency this appeal is prosecuted.

The statute of limitations relied on as a bar to this suit is as follows: Code 1896, § 2793: "Civil suits must be commenced after the cause of action has accrued within the period prescribed in this chapter, and not afterwards." Section 2795: "Within ten years: *** (2) Actions for the recovery of lands, tenements or hereditaments or the possession thereof, except as herein otherwise provided." Section 674: "The provisions of this Code, prescribing the time within which civil suits must be commenced after the cause of action has accrued, apply to suits commenced by bill in chancery." The defense invoked by the plea rests upon the foregoing provisions of the statute, and by them its merit must be tested. If the suit was commenced within 10 years after the cause of action accrued, the plea can be no answer to the bill.

1. An action to set aside a fraudulent conveyance of lands at the suit of an existing creditor of the grantor is a suit in equity for the recovery of lands, and is governed by the statute of limitation of 10 years. Code 1896, § 674; Werborn's Adm'r v. Kahn, 93 Ala. 201, 206, 9 So. 729; Proskauer v. Bank, 77 Ala. 257; Scruggs v. Land Co., 86 Ala. 173, 5 So. 440; Lockard v. Nash, 64 Ala. 385; Snodgrass v. Bank, 25 Ala. 161, 60 Am. Dec. 505.

2. A surety is an existing creditor, entitled to protection against a fraudulent conveyance made by his co-surety at any time subsequent to the execution of the common obligation. Bibb v. Freeman, 59 Ala. 612; Werborn's Adm'r v. Kahn, supra; Yeend v. Weeks, 104 Ala. 331, 341, 16 So. 165; Keel v. Larkin, 72 Ala. 493; Fearn v. Ward, 80 Ala. 555, 2 So. 114; Bragg v. Patterson, 85 Ala. 233, 4 So. 716; Jenkins v. Lockard's Adm'r, 66 Ala. 377, 381.

3. Such an action can in no case be maintained until the cause of action accrues,-until the demand becomes due and payable. Jones v. Massey, 79 Ala. 370; McGhee v. Bank, 93 Ala. 192, 9 So. 734; Freider v. Lienkauff, 92 Ala. 469, 471, 8 So. 758; Bragg v. Patterson, supra; Truss v. Miller, 116 Ala. 497, 22 So. 863. See, also, note to Ladd v. Judson (Ill. Sup.) 66 Am. St. Rep. 289 (s. c. 51 N.E. 838).

4. The right of action for contribution at law or in equity accrues when one surety pays more than his share of the common liability. Yeend v. Weeks, supra; Keel v. Larkin, supra; Werborn's Adm'r v. Kahn, supra; Babcock v. Carter, 117 Ala. 579, 580, 23 So. 487; Bragg v. Patterson, supra; Bibb v. Freeman, supra; Jenkins v. Lockard's Adm'r, supra; Preslar v. Stallworth, 37 Ala. 402, 405; Stallworth v. Preslar, 34 Ala. 505.

5. The statute of limitation can in no case begin to run until the cause of action accrues. Code 1896, §§ 2793-2795, 674; Pickett v. Pope, 74 Ala. 122, 131; Gafford v. Strauss, 89 Ala. 283, 286, 7 So. 248, 7 L. R. A. 568; Gindrat v. Railway Co., 96 Ala. 162, 166, 11 So. 372, 19 L. R. A. 839; Truss v. Miller, supra; Pendley v. Madison's Adm'r, 83 Ala. 484, 3 So. 618; Railway Co. v. Buford, 106 Ala. 303, 313, 17 So. 395; Swann v. Lindsey, 70 Ala. 507, 519; 2 Brick. Dig. 220, § 35; Baker v. Barclift, 76 Ala. 414, 417; Lawson's Adm'r v. Lay's Ex'r, 24 Ala. 184; Wyatt's Adm'r v. Rambo, 29 Ala. 510, 68 Am. Dec. 89; Edwards v. Bender (Ala.) 25 So. 1010, 1012; Owen v. McGehee, 61 Ala. 440, 447; Werborn's Adm'r v. Kahn, supra; Robinson v. Pierce (Ala.) 24 So. 984, 991; Manning v. Pippen, 86 Ala. 357, 5 So. 572; Brown v. Campbell (Cal.) 35 P. 433, 38 Am. St. Rep. 314, 319; note to Lumber Co. v. Haworth (Iowa) 60 Am. St. Rep. 207 (s. c. 67 N.W. 383); Weaver v. Haviland (N. Y.) 37 N.E. 641, 40 Am. St. Rep. 631; Gates v. Andrews, 97 Am. Dec. 764; Bump, Fraud. Conv. (3d Ed.) § 562; Ang. Lim. 42.

With a statement of the above propositions this case would be free from difficulty, but for the question of adverse possession contained in respondent's plea setting up the statute of limitations in bar of the suit. In dealing with this question, it needs only to be ascertained what is adverse possession, its nature and incidents, and to avoid a confusion of it with the statute of limitations. Adverse possession may be said to be a collective fact, made up of other facts which are essential, constituent elements to the creation of the collective fact. Among these constituent elements are an actual possession of the res, and an open and notorious assertion of claim of ownership hostile to the true owner. After its creation, it is the continuation of this collective fact without interruption for the period fixed by the statute of limitations as a bar to the commencement of a suit that renders it effective as a defense. It is the thing that puts the statute in motion, as contradistinguished from the statute itself, and its continuity for a definite period that completes the bar of the statute. Even after the statute has been put in motion, a break or interruption in the adverse possession stops the running of the statute. Moreover, a possession, to be adverse, must operate to disseise or oust some other claimant of his possession or right of possession. In speaking of adverse possession, its nature and incidents, in Pickett v. Pope, 74 Ala. 122, 131, which was an action of ejectment by remainder-men against the grantee of the life tenant claiming to hold adversely, it was said by this court: "An adverse possession, it will thus be seen, is something more than a mere possession, accompanied with hostile claim of ownership. It is very true that, ordinarily, an actual occupancy of lands, accompanied with an open, notorious, and uninterrupted claim of ownership, with intention to claim hostile to the title of the real owner, constitutes adverse possession. But this is so only where the possession of the occupying claimant is hostile to the claim or right of possession of some one else. If there be no other person entitled to present possession, there can be no repugnancy, actual or constructive, between the mere possession of the occupant and the rights of any one else. A possession, to be adverse, must, in other words, operate to disseise or oust some other claimant of his possession or right of possession. *** It is an axiomatic proposition, which requires no reasoning in its support, that there can be no incompatibility between a right which exists and one, so to speak, which does not exist. The tenant for life is entitled to actual possession of the premises of which he is enfeoffed; the remainder-man is not so entitled, as long as the life tenant is living. The actual possession of the former, therefore, is rightful, and not wrongful. It is not adverse to any right of the remainder-man, but perfectly...