Pickett v. Doe ex rel. Pope

SOMERVILLE, J. — The action is ejectment, brought by the plaintiff's as remainder-men of the property sued for, claiming in view of the termination of the precedent estate by the death of the lifa-tenant. The defendant claims title through various mesne conveyances, running back to May, 1845, all of which, including the original deed from Mrs. Mildred Holcombe, the life-tenant, purport to convey the entire fee with warranty of title. It is not denied that these several conveyances passed to defendant, and those through whom she claims, only the life-estate, and that they did not operate to convey or affect the estate in remainder. This point was so adjudged when this case was last tried before us. Doe, ex dem. Pope v. Pickett, 65 Ala. 487; see Smith v. Cooper, 59 Ala. 494, and authorities cited. ■ The chief point of controversy relates to a claim for permanent improvements, preferred under the provisions of sections 2951-2954 of the Code of 1876. — Rev. Code, 1867, §§ 2602-2605; Code, 1852, §§ 2201-2204. No contention arises as to» the right of the defendant to set off the value of the improvements, in reduction of the rents recoverable by the plaintiffs. It was conceded that she had “ possession under color of title, in good faith; ” and this fact operated to acquit her of liability for damages, or rent, for more than one year before the commencement of the suit, under the express provisions of the statute. — Code, 1876, § 2966. The whole question in the case is, was the possession of the defendant adverse to the remainder-men, kef ore the termination of the hifeestate ? The allowance for permanent imjn’ovements is made by the statute to 'depend upon the contingency, that the defendant in ejectment, and “ those whose possession he has,” should, for three years next before the commencement of the suit, have had adverse — 129 — possession” of the premises sued for, or in controversy. Cpde, § 2951. It is contended by appellant’s counsel, that this court is committed to the view, that one who claims the full title of property, under a deed purporting to be a conveyance of the perfect title by the tenant for life, holds adversely to the remainder-man. In support of this view we are referred to the case of King v. Broome, 10 Ala. 819, and other subsequent cases following that decision.— Walker v. Fenner, 28 Ala. 367; Thrasher v. Ingram, 32 Ala. 645; Price v. Tally, 18 Ala. 21. The point settled in King v. Broome, supra, seems to be, that where a vested remainder is created in personal property, and the tenaut for life sells the entire property to a stranger, this wrongful act operates as a discontinuance of the remainder, and converts it into a chose in action. Without-stopping to examine the doubtful reasoning upon which this case was made to stand, and to which more recent decisions seem repugnant, we may observe, that it has never been adjudged to have any application to real property. There is something in the nature of personal property, with its portable and perishable character, which essentially distinguishes any estate or interest in it from a like estate or interest in realty. A sale of personal property, by one having a life-estate, it is true, has been adjudged not to affect the title of the remainder-man to his prejudice. — Thrasher v. Ingram, 32 Ala. 646; Jones v. Hoskins, 18 Ala. 489. And the same is true of real estate, as we have already seen. — Smith v. Cooper, 59 Ala. 494; Pope v. Pickett, supra. It was no doubt correctly held, too, in Nations v. Hawkins, 11 Ala. 859, that, if a life-tenant of a personal chattel disposes of it as his absolute property to a third person, one who owns the estate in remainder can not maintain trover for the conversion; but the sole reason assigned was, that he had no right to the immediate possession, which was a necessary pre-requisite to the maintenance of the action. It would seem, however, that any unlawful exercise of dominion by the purchaser over an estate in remainder, created in personal property, resulting in its injury or destruction, might be regarded as a tort, for which an action on the case would lie in behalf of the remainder-man. It is so intimated in the case to which we have last adverted, and the suggestion accords with the assertion made in Broome v. King, 10 Ala. 823, supra, that “ the estate of a remainder-man [in a personal chattel] is a subject to be turned into a mere right of action, as any other vested estate.” It is the alleged discontinuance of the remainder as such which operates to transmute its legal nature; and this is produced by a tortious and unauthorized exercise of dominion over it, at war with the rights of the-owner. It is manifest that this can not be the — 130 — case with real property. No sale of it by a life-tenant can in any manner affect, or change the nature or status, of the estate in remainder. It is -the effect of our statutes now, and was so at the time the various deeds were made to the property in controversy, that “a conveyance made by a tenant for life, purporting to convey a greater interest than he owns, does not work a forfeiture of his estate, but passes to the grantee the property and possession of the grantor, all warranties by him being declared void as against the remainder-man. — Code, 1876, §§ 2192, 2196; Code, 1852, §§ 1313, 1317; Clay’s Dig. 156, §§ 30, 35; Aiken’s Dig. 94 §§ 32, 37; Pope v. Pickett, 65 Ala. 487. There can be no possible dealing with the remainder, by the tenant for life of real estate, which can operate to discontinue it, or change it into a chose in action. If he be guilty of waste, by doing any act fo the lasting in jury of the inheritance, the intervention of a court of equity is deemed adequate to his protection. Its distinguishing characteristic, like that of all other realty, is its immobility, so that it can not follow the person, as chattels may do. It is also permanent and imperishable in its nature, so that no waste or trespass upon it can change its legal status or relation, except as against one whose right of possession is infringed or involved. If we concede, therefore, that it is possible, strictly speaking, for .an estáte in remainder in personal chattels to be held adversely to the remainder-man, before the death of the life-tenant, the rule does not necessarily apply to real estate. Without seeking to disturb the authority of King v. Broome, supra, and the other cases based on it, we decline to extend the principle to cases involving real estate. It must be confined to personal chattels, or at least to property other than realty. We recur to the question, Was the possession of the appellant in this case adverse to the plaintiffs, within the meaning of the statute, before the death of Mrs. Holcombe, the tenant for life, which occurred in May, 1867? There is much antiquated learning- concerning the doctrine of adverse possession and disseizin, which was applicable to tenures existing under the Feudal System, and into a discussion of which we do not propose to enter. It was to the inherent difficulties of this subject that Lord Mansfield referred, when he declared in Atkyns v. Horde (1 Durr. R. 60), “ the more we. read, the inore we shall be confounded.” In modern times, however, and under our .system of land tenures, adverse possession is now understood to ■denote, as observed by Mr. Angelí, “ a disseizin upon-which an adverse title is founded, the old term- ‘ disseizin ’ being expressive of any act, the necessary effect of which is to divest the estate'of the former .owner.” — Angelí on Lim. § 385; Preston on Abs. Title, 383. A disseizin, anciently, was nothing — 131 — less than some act or mode by which the disseizor acquired the tenure, and usurped the place and feudal relation of the tenant. 2 Smith’s Lead. Cases, 396. Disseizin is synonymous with adverse possession, and is so generally considered.- — Tiedeman on Keal Prop. § 693; Magee v. Magee, 37 Miss. 151. Mr. Preston defines it as “an ouster of the rightful owner of his seizin.” — 2 Prest. Abst. 281. It is defined by Littleton to be “where one enters intending to usurp the possession and to oust another of his freehold.” — Co. Litt. 153, 238a*. 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 disseize, or oust, some other claimant of his possession or right of possession. — Angelí on Lim. .§ 389 ; Sedgw. & "Wait’s Trial of Titles, § 729 ; Tiedeman on Peal Prop. § 693. Hence, an adverse possession has been defined to be, an occupancy “which disclaims the title of the negligent owner.” — Walk. Amer. Law (5th Ed.), 339 — 10. It need not, of course, be actual, so as to partake of the nature of physical force, but may as well be a constructive disseizin or ouster. But, whether tlie one or the other, any possession, to be adverse, must be wrongf%d as against some one who claims to be or is legally entitled to the possession. It must be an act so far operating to the prejudice of another as to constitute the basis of an action predicated on its wrongful or tortious nature. There can not be two hostile possessions, of the same property at the same time, although there may be many hostile claims. One must operate to overcome and displace the other, if the two be adverse. We are unable to conceive of an adverse possession which is not exclusive of the rightful owner, or does not operate to encroach upon his right of possession so as to oust or disseize him — Sedgw. •& Wait’s Trial of Titles, § 752; Angelí on Lim. § 386. The principle is everywhere well settled, that there can be no adverse possession, or claim of ownership, by a tenant for life, which will operate to bar the estate in remainder, under the influence of the statute of limitations, which commences to run only from the death of the life-tenant.- — • Wells v. Prince, — 132 — 9 Mass. 509; Doe v. Danvers, 1 East, 321; Angell on Lim. ' § 415. The reason is manifest. The possession of the life-tenant must be taken to be conclusively friendly to the rights of the remainder-man. The hostility of his dawn can not, in the absence of a hostile possession, be considered as an invasion of the rights of the remainder-man, and, for this reason, it can not be the ground or gravamen of a legal action. It is, therefore, commonly said, that the possession of one is that of tire other. 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 compatible witli ali of his rights. The latter having no right of possession, either actual or constructive, can not be disseized, or ousted, in any proper acceptation of these words. — Tiedeman on Real Prop. § 400; 2 Wash, on Real Prop. 555. In accordance with these views, we find that the most approved definitions of an adverse possession involve not only the idea of an actual, visible and exclusive appropriation of land, accompanied with an intention, openly avowed, to claim against the rightful owner, but to hold against one who is seized. — Angelí on Lim. § 390; 2 Smith’s Lead. Cases, 396; Sedgw. & Wait’s Trial of Titles, § 130. Our conclusion is, that the adverse possession designated in section 2951 of the Code must be construed to be just the same character of hostile possession as will put in operation the statute of limitations, except, as has been adjudged, that it must be bona fide under color, or other claim of title — a feature of claim not essential to perfect a bar under the statute of limitations, except in cases of constructive possession, as distinguished from an actual possession- — a possessio pedis. — The N. O., &c., Railroad v. Jones, 68 Ala. 48; Sedgw. & Wait’s Trial of Tit. § 775; Smith v. Roberts, 62 Ala. 83. In view of this conclusion, the defendant, not being in adverse possession of the premises sued for, can derive no aid from the statute, in support of her claim for permanent improvements. Apart from the influence of the statute, it is well settled, upon principles too well defined to require discussion, that improvements put on land by a life-tenant, during his occupancy, constitute no charge upon the land, but pass to the remainder-men.- — Merritt v. Scott, 81 N. C. 385; 2 Perry on Trusts, § 546. The various decisions to which we have been cited by the — 133 — appellant’s counsel, in support of his views, are constructions of statutory provisions in other States, which are essentially variant- in meaning and phraseology from our own. Most of these “ betterment acts,” if not every one, to a construction of which we have been referred, seem to require Only an occupancy, accompanied with a bona fide claim of title, and not an adverse possession, as our own does. This distinction is the pivotal point upon whicli the present case is made to turn. There was no error committed in allowing the substituted complaint to be filed. It operated, at most, only as an amendment of the original complaint, and varied from it only as to the description of the land sued for by the plaintiffs. We can not see, from the entire record, that the amended description was intended to include premises other and different from those described in the original complaint, especially in view of the fact that the matter of identity is always open to the light of explanation by extrinsic evidence. The whole correction made ■seems to have been the substitution of South for Nortf which may have been, a mere clerical error. — Russell v. Erwin, 38 Ala. 44; Sedgw. & Wait’s Trial of Titles, §§ 464, 459. A correction in the description of the property sued for should not be regarded as the substitution of a new cause of action, unless it appears to be such a wide departure from the former description as to introduce a claim to other and different premises not intended to be previously claimed. — Dowling v. Blackman, 70 Ala. 303, and cases cited. The judgment of the Circuit Court is affirmed. Stone, J., not sitting.