Wilson v. Alston

• Decision Date: 11 February 1899
• Citation: 122 Ala. 630,25 So. 225
• Parties: WILSON ET AL. v. ALSTON.
• Court: Alabama Supreme Court

25 So. 225

122 Ala. 630

WILSON ET AL. v. ALSTON.

Supreme Court of Alabama

February 11, 1899

Appeal from circuit court, Bibb county; John Moore, Judge.

Ejectment by Samuel F. Alston against W. J. Wilson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

The record shows that all the defendants except W. J. Wilson filed the plea of not guilty, and it does not appear that there was any plea filed by said W. J. Wilson. The material facts in the case are as follows: On the 5th of March, 1874 James Hill and Nancy Hill, his wife, executed a deed of conveyance of certain lands in Bibb county to their daughter Grace E. Wilson, "and to the heirs of her body after her death." This deed was filed in the probate office of Bibb county, for record, on the 5th day of April, 1874. At the time of the execution of this deed, Grace E. Wilson, the grantee named, was the wife of W. J. Wilson, and the mother of two or three children, and several children were born to her afterwards. In 1885, Grace E. Wilson died, leaving surviving her five children, who are defendants in this suit. At the time of said conveyance, the grantee, Grace E. Wilson went into possession, and with her family occupied and resided on said land until her death; and her husband and her children, defendants have ever since resided on and occupied said lands. After the death of Grace E. Wilson, to wit, on the 27th day of April, 1894, her husband, W. J. Wilson executed a mortgage to Samuel F. Alston to secure a personal debt of his at that time created for purchase of mules, conveying therein said lands in this action sued for; being a part of the lands conveyed by Grace E. Wilson's father to her by deed, as above recited. In default of payment, Alston foreclosed said mortgage, sold and executed a deed to said land to one A. D. Mellin on the 14th day of February, 1895, for consideration of $10, signing the said deed of conveyance, "W. J. Wilson, by S. F. Alston, Atty. in Fact," and "Samuel F. Alston, Mortgagee," and on the same day, and for the same consideration, said A. D. Mellin conveyed said land so bought by him to said Samuel F. Alston. Samuel F. Alston institutes this suit against W. J. Wilson and the children of W. J. Wilson and Grace E. Wilson to recover said lands, and damages for the detention of them. On the trial, as appears from the bill of exceptions, the plaintiff introduced in evidence the mortgage executed by W. J. Wilson to him, the deed which was executed by him to Mellin at the time of the foreclosure, and the deed from Mellin back to him. He also introduced in evidence a deed from James and Nancy Hill to W. J. Wilson, dated July 31, 1874, the only recital in the bill of exceptions as to this deed being as follows: "The plaintiff then introduced a deed from James Hill and wife, Nancy Hill, to W. J. Wilson, dated the 31st July, 1874, to wit, containing the same description as in the deed to Grace E. Wilson, of date March 5, 1874." The defendant offered to introduce in evidence the deed from James and Nancy Hill to Grace E. Wilson, which was dated March 5, 1874. To the introduction of this deed in evidence the plaintiff objected upon the following grounds: "(1) That it shows it has been altered; (2) because it does not sufficiently describe the land in this suit; (3) because this deed is void as to plaintiff, because it is not shown it was recorded in thirty days after its execution; (4) because deed shows that Grace E. Wilson took a fee simple; (5) that she died before the mortgage, and her husband was her heir; (6) that deed does not show title, except as to W. J. Wilson, plaintiff, having acquired his title." The court sustained the objection, refused to allow the deed to be introduced in evidence, and to this ruling the defendants duly excepted. The other material facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his behalf, and to the giving of this charge the defendant duly excepted. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the court's refusal to allow the defendants to introduce in evidence the deed from James and Nancy Hill to Grace E. Wilson, and the giving of the general affirmative charge in favor of the plaintiff.

W. W. Lavender and J. M. McMaster, for appellants.

Ellison & Thompson and Jones & Brown, for appellee.

SHARPE J.

Upon the trial in the circuit court the plaintiff claimed the land in suit through a mortgage to him made by the defendant W. J Wilson on April 27, 1894, and afterwards foreclosed under the power it contained. To show the mortgagor had title when he conveyed, he introduced evidence of the mortgagor's possession at that time, and also a deed to the mortgagor from James and Nancy Hill, dated July 31, 1874. The defendants sought to claim through and defend under deed from James and Nancy Hill, who were the common source of title, to their daughter, Grace E. Wilson, the deceased wife of W. J. Wilson, and the mother of the other defendants. The deed purports to have been executed and duly acknowledged on the 5th day of March, 1874, and was filed for record April 5, 1874, and it was, therefore, prima facie self-proving. The original deed is sent here for inspection, and upon examination it appears to have been interlined in two places, but that feature is explained by the testimony of the justice who took the acknowledgment of the grantors, to the effect that the interlineations were made before the deed was executed, and such fact is recited at the end of the deed. The only ground insisted upon to justify the exclusion of this deed is that which embodies the controlling question in the case, and which is stated in appellee's brief as follows: "There are several assignments of error, but all amount to one only, and all raise and involve one question only. That question is, the effect of the deed from James Hill and Nancy Hill to Grace E. Wilson. The plaintiff (appellee) insists that the said deed created in the said Grace E. Wilson an estate in fee tail; that under our statute this became an estate in fee simple; that upon the death of the said Grace E. Wilson, her husband, the defendant W. J. Wilson, became entitled to the use of her realty during his life, and that he conveyed to the plaintiff, S. F. Alston, appellee, his life estate in the lands sued for by the mortgage which he executed to him on the 27th day of April, 1894." The defendants contend that either the grant is to Mrs. Wilson and her children jointly, or, if not so, then the terms of the conveyance are such as would at common law have brought the grant within the influence of the rule in Shelley's Case, and that by that statute abolishing that rule the whole estate vested in the children at their mother's death. The granting clause of the deed is as follows: "We do grant, bargain, sell, and convey to the said Grace E. Wilson of the second part and to the heirs of her body after her death, the following described real estate, to wit." Next following the description is the habendum clause, "to have and to hold to the said Grace E. Wilson of the first part and to the heirs of her body after her death." The words "heirs of the body," by a long course of legal interpretation, acquired a settled meaning, whereby they impute to the grantor the intention to create an estate of inheritance restricted in the course of descent to the...