Winters v. Powell

• Decision Date: 28 November 1912
• Citation: 61 So. 96,180 Ala. 425
• Parties: WINTERS v. POWELL et al.
• Court: Alabama Supreme Court

61 So. 96

180 Ala. 425

WINTERS v. POWELL et al.

Supreme Court of Alabama

November 28, 1912

Rehearing Denied Feb. 13, 1913

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by Lige Powell and others against Z.D. Winters. From a judgment for plaintiffs, defendant appeals. Affirmed.

McClellan and Somerville, JJ., dissenting.

George A. Sorrell, of Alexander City, for appellant.

William H. & J.R. Thomas, of Montgomery, and Felix L. Smith, of Rockford, for appellees.

SAYRE J.

This is an action of ejectment brought by appellees, who claimed as children and heirs of George Powell, deceased, against appellant, Winters. Defendant (appellant) has traced an unbroken paper title back to one Rylant, who was in possession of the land at the date of his sale to one Pinson in 1868, two links being furnished by a deed from Pinson to Fannie Powell, widow of George, in 1888, and the deed of Fannie Powell, in 1893, to one Batson, who stands in the series as one of defendant's predecessors in title. The testimony for defendant went to show that Batson had known Mrs. Powell and the land in controversy since 1886, at which time she was in possession, cultivating and claiming to own the same, and so remained until the time of his purchase from her, when he paid to her the amount named in her deed, and received possession from her. At that time she claimed to own the land, and exhibited to him her deed from Pinson as the source of her title. Batson testified that at the time of his purchase he had no knowledge or information that any one other than Fannie Powell owned or claimed to own the land. Batson conveyed to N.C. Willingham on a valuable consideration, and she, having married defendant, died leaving a will by which she devised the land to her husband.

On the other hand, Pinson, being then in the possession and ownership of the land, in 1868 had sold it to George Powell. No deed was executed, but, instead, Pinson put Powell in possession, and in 1871 delivered the deed he had received from Rylant, with the following indorsement thereon: "We hereby transfer the within deed to George Powell *** to have and to hold to their [his] full use and benefit, hereby relinquishing all claim against said described land"--after signing the same in the presence of a witness. Neither the deed from Rylant to Pinson nor Pinson's indorsement to Powell has ever been recorded. Powell, with his family occupied the land as a homestead under undisputed claim of ownership until 1879, when he died. The relevant part of his will, which was shortly thereafter duly probated and recorded, after providing for the payment of debts and funeral expenses, made the following disposition: "I give my wife Fannie Powell, all my real estate and during her lifetime and to be used by her for the support and benefit of the family and herself after such debts and expenses be paid." The property in suit was not described in the will. Mrs. Powell died in 1910, and plaintiffs' contention, allowed in the court below, is that thereupon they became entitled to sue and have possession of the land.

Error is attributed to the trial court on two grounds: (1) That Mrs. Powell and those under whom defendant claims held the land adversely to plaintiffs for more than 10 years. (2) That defendant is a bona fide purchaser for value without notice.

1. The contention that the widow Powell, and those through whom defendant traces title back to her, held adversely to the plaintiffs during her lifetime, when considered in connection with the evidence of offered to sustain it, concedes--at least it does not deny--that the title had vested in George Powell, and, in consequence, that his relict received and for years held possession under his will. The argument is that when the widow Powell took a deed from Pinson and put it upon record, she put plaintiffs upon notice of her adverse holding, and thereupon plaintiffs had a right to go into equity to remove the cloud cast by her deed upon their title in remainder, and, quoting the opinion in Woodstock Iron Company v. Fullenwider, 87 Ala. 584, 6 So. 197, 13 Am.St.Rep. 73, "the failure to exercise this right for over 20 years is such laches as authorizes the inference that the right to do so is barred in any one of the modes in which that result may be effected." A remainderman may for the establishment of his ultimate right maintain a bill in equity to remove a cloud from his title in remainder pending the particular estate without in any wise drawing into question or affecting the interest of the life tenant. Lansden v. Bone, 90 Ala. 446, 8 So. 65. But a cloud upon title is that which appears to be, but in law and in fact is not, title. The only harm which can result from a cloud is that the holder of the title may find his property unmarketable, and at some distant time may have difficulty in producing the evidence requisite to rebut it, or to show its true nature. "But if," as Judge Freeman has remarked in his note on the Fullenwider Case, 13 Am.St.Rep. 73, "he chooses to suffer these inconveniences, *** no presumption can justly be indulged from the failure to bring an action to remove a cloud upon a title, because, as a cloud is not title, it may continue to the end of the world without becoming anything more substantial." However, it seems there may be cases in which such a bill, so timed, is necessary to prevent the destruction of the rights of reversioners or remaindermen by the lapse of 20 years under the doctrine of prescription. An example is found in Woodstock Co. v. Fullenwider, supra, relied upon by appellant. As was made plain in Robinson v. Pierce, 118 Ala. 273, 24 So. 984, 45 L.R.A. 66, 72 Am.St.Rep. 160, the ratio decidendi of that case, however debatable, is to be found in the doctrine of estoppel which found application in the fact that, while the proceedings in the probate court for the sale of lands against which the plaintiff there claimed were void in law, they were effective to vest an equitable title in the purchaser, and put upon the remainderman the necessity of doing equity as a condition precedent to the exercise of equity powers for his relief--specifically, in that case it was necessary that the remaindermen tender to the purchaser the amount bid at the sale under which the defendant claimed. The ruling was that a failure for more than 20 years to exercise the right to file a bill, dependent upon an offer to do the specific equity which the proceedings for the sale of the land had devolved upon plaintiffs, along with a neglect for that length of time to do that equity, was such laches as authorized an inference, cognizable in the law court, that the right to do so had been barred in any one of the modes in which that result might have been effected. There has been a disposition to withhold approval of that case; but we need not pursue the subject further, for in Bolen v. Hoven, 143 Ala. 652, 39 So. 379, where, as here, there was no element of estoppel, this court denied the identical proposition now urged by appellant, stating the rule which obtains in such cases in this language: "Until the termination of the life estate, the remainderman," or, we may add, the reversioner, as here, "had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be any adverse possession as to him. For like reason there can be no ouster of a remainderman who has neither the possession, nor right of possession, during the life of the life tenant"--citing Pickett v. Pope, 74 Ala. 122, where our statutes on the subject (now sections 3406 and 3420 of the Code 1907) are referred to, and some other of our cases on the subject. Several cases to the same effect are cited in Blakeney v. Du Bose, 167 Ala. 638, 52 So. 746. Identical considerations prevent the imputation of laches to appellees. They have not been in default in the performance of any equitable duty to appellant. Prior to the death of Mrs. Powell there was never a time when they could have had judgment or decree operative presently upon the...