Bercy v. Lavretta

STONE, J. The deed of Foloe Pinta, of date May 5th, 1846, secured to his wife, Marie Yictorine Pinta, an equitable separate estate in the property therein conveyed, for and during the term of her natural life, remainder to her children begotten by the said Foloe. Eleanor Bercy, mother of the complainants in this suit, was one of the children of that marriage. The deed contains no words of exclusion, as to the interests which the children took as remainder-men. When Eleanor' intermarried with Mr. Bercy, her interest in the property in controversy in this suit became her statutory-separate estate, subject to all the rules which govern that species of estate. In 1862, Bercy and wife conveyed the lands in controversy to Molloy and Horgan, by deed of bargain and sale, who subsequently conveyed to Lavretta, the present adverse claimant. In the case of Schaffer v. Lavretta, 57 Ala. 14, construing the deed of Foloe Pinta, under which the present complainants assert title, we held, that the title of the trustee named in the deed terminated at the death of Mrs. Pinta, and that Mrs. Bercy took, freed from the trust imposed by the deed. We have no inclination to disturb, or re-examine that ruling. The title of Mrs. Bercy, then, became a naked statutory separate estate, of which her husband was the trustee. The ground on which complainants seek to avoid the deed of Bercy and wife to Molloy and Horgan, made in 1862, is that Mrs. Bercy was then an infant under twenty-one years of age. Such is the averment of the bill; and it is not shown when she attained the age of twenty-one years. The entire averment is, “ that at the time of signing said deed, their mother, said Eleanor, was an infant under the age of twenty-one years.” Mrs. Bercy died in July, 1877, leaving her. husband surviving her; and the present bill was filed in Octo-^ ber, 1877. Molloy and Horgan, and Lavretta under them, have held adversely, and under claim of title, ever since the purchase of the former, in July, 1862. It is assigned as ground of demurrer to the bill, that it shows on its face that Lavretta, and those whose title he has, have had adverse possession of the property sued for, for more than ten years before the bringing of this suit. The chancellor sustained this ground of demurrer, and appellants assign this ruling as error. Complainants contend, that, inasmuch as the bill [381] does not clearly show that Mrs. Bercy had been of lawful -age of twenty-one years, for ten years before this suit was brought, the defendants should have been put to their plea of the statute of limitations, when all the facts could have been brought out in evidence. If it be shown by the bill that the relief prayed for is barred by the statute of limitations, the defense is available by demurrer. — 1 Brick. Dig. 699, § 859. The statutes of limitation,, in this State, are expressly made applicable to suits in chancery; and the exception in favor of married women, allowing them a time within which to sue, after the removal of their disabilities, does not extend to, or enlarge the time in which she may sue, in respect to her statutory separate estate. — Code of'1876, §§3758, 3759, 3225, 3236. The inquiry, then, is, does the bill show the present claim is barred by the limitation of ten years ? The established rule is, that pleadings must be construed most strongly against the pleader. — 1 Brick. Dig. 701, §§ 903, 895, 896. Tíre averment of this bill, as we have shown, is, that Eleanor, mother of complainants, was an infant under twenty-one years of age, when she executed the conveyance. Age of a person is not of the class of facts which, being proved to have existed at a given time, is presumed to continue in statu quo, until the contrary is shown. It is not a fact in its nature continuous, but is ever changing with the flight of time. — 1 Brick. Dig. 806, §§ 32 et seq. The averment that Mrs. Bercy was an infant under twenty-one years of age in July, 1862, is not an averment that she was an infant at any later period. Such an averment, standing alone and unaided, rather negatives the idea that she remained an infant at a later date. Another view: The general rule is, that when lands are adversely held and occupied for ten years, all persons, even the rightful owner, are barred the right of entry. There is an exception in favor of infants, &c.; but it is only an exception to a rule. Whoever relies on the exception, to relieve him from the operation of the general rule, must state facts which show he is within the exception. Failing to do so, the courts presume the case falls within the general rule. The statutes of limitation were suspended in this State, from January 11th, 1861, to September 21st, 1865. On the day last named, the statute commenced running against Mrs. Bercy. The present suit was commenced more than twelve years afterwards. The chancellor did not err in sustaining the demurrer to complainants’ bill. — Molton v. Henderson, at the last term. It is claimed for appellants, that their case is within the [382] influence of section 3235 of the Code of 1876, and therefore the statute does not bar their suit. The averments of the present bill, which are supposed to bring this case within the influence of that section, are, “ That the said Eleanor,. mother of complainants, together with her sister, Helen Schaffer, whom she was advised it was necessary to join with her, did on the 22d day of January, 1871, file a bill in this honorable court, against the said Molloy and Horgan, and Giovanni Lavretta and others, in which they prayed that their respective deeds, made by them to said Molloy and Horgan, should be declared void, and that the same be can-celled ; and for such other and further relief as said court should deem proper under the circumstances of the case : That answers to said bill were duly filed by said Molloy and Horgan, and said Lavretta and other defendants thereto ; and that upon the hearing of said cause, the same was dismissed by decree of this honorable court: That an appeal was taken by the said Helen Schaffer and Eleanor Bercy in said suit, from the decree of this honorable court, to the Supreme Court of the State of Alabama: That the same was argued at the December term, 1876, of the said Supreme Court; and at the June term, 1877, thereof, a decree was rendered, modifying the decree of this honorable court, by dismissing said bill without prejudice to the mother of complainants, said Eleanor Bercy, to sue again: That the said cause was, at the June term, 1877, of , this honorable court, dismissed therefrom, in strict conformity with the decree of the said Supreme Court.” It is manifest that this averment falls very far short of making a case within section 3235 of the Code. Not to mention its failure to show the ground on which the bill first filed was dismissed out of the Chancery Court, and out of this court, it does not present a case of ‘ judgment rendered for the plaintiff,’ and such judgment ‘ arrested, or reversed on appeal.’ We consider it unnecessary to notice any other question raised in this cause. The decree of the chancellor is affirmed.