McLeod v. Bishop

HEAD, J. Statutory real action by appellees against appellants for 153 acres of land. Plaintiffs claimed as the heirs of Caroline Bishop, who died in May, 1876. The defendants claimed under purchase by Wm. McLeod, in 1891, from D. H. Bishop, who was the husband of said Caroline, and who died during that year, or the next, having executed a conveyanco to McLeod. There was evidence tending to show that Shepherd M. Streater, who was the father of said Caroline, was in possession of the land from 1836 to T852 or 53, when said D. H. Bishop and his wife, said Caroline, moved on the land whereon they continued .to reside together, until the death of Caroline in 1876 ; and thereafter he continued to reside thereon, exercising the usual acts of ownership of an absolute owner, until his death, though he had sometime before, as stated, conveyed to McLeod. It is not questioned by either party that the title of Streater was divested by the possessions. The ques-' tions for trial were, to whom should the possession be referred, during the occupancy of the husband and wife? and what was the legal character of the husband’s possession after the death of the wife, until he sold to McLeod? A witness for plaintiffs testified that “in 1856 and 7, before and after that time, he heard D. H. Bishop say that said land belonged to his wife.” The plaintiffs then asked the witness, if he heard said Caroline, while she was residing together with her husband on the land, make any declarations to the effect that her father had given said lands to her? The question was objected to on the grounds, that it sought to prove by parol evidence a gift of land; and that the declaration was not [645] made in the presence of the husband. The objections were overruled, and the witness answered that she stated in his presence, shortly after she and her husband moved on the lands in 1852 or 53, that her father had given the lands to her. The principle that declarations of one shown to be at the time in actual possession of property, asserting title of ownership in himself, are admissible as res gestx, does not extend to declarations as to the source of his title, or the manner in which he acquired the property.—1 Brick. Dig. 843, § 560; Ray v. Jackson, 90 Ala. 513, and authorities cited. There was error, therefore, in admitting the testimony objected to, and overruling the motion to exclúde it. The same is true of the declaration made by her in the presence of her father. There was testimony by two other witnesses, of admissions made by D. H. Bishop that the lands belonged to his wife. The court, on objection of plaintiffs, refused to permit a witness for defendants to testify that D. H. Bishop had been in the uninterrupted possession of the land in controversy for twenty-five years, or more, before he deeded it to McLeod, living on it and cultivating it; that said Bishop’s homestead upon which he and his wife resided together until her death consisted of a bo,dy of 160 acres; that witness bought eight acres from him ten or twelve years ago, and that the balance of the 160 acres is the land in controversy; that witness’ bought the eight acres and received a deed . from D. H. Bishop after the death of said Caroline, and while D. H. Bishop was in possession and claiming the whole of said 160 acres.' It is clear, as we have said, that the governing question in the cause is whether the occupation of the land by Mr. and Mrs. Bishop was in his or her right. If they went upon it as her property — the husband recognizing it as hers, asserting no exclusive claim as his own — he could not thereafter, during her life or after ■ her death, set up an adverse claim in his own right. Going into the possession of the land as hers, and for her, the husband’s statutory trusteeship of the wife attached, with its attendant duties, and no use or disposition he might make would impair her right. Or, leaving the statute out of view, he became tenant by the courtesy initiate, and could set up no efficacious adverse claim in his own be [646] half. After her death, in such case, he became the owner for life with all the rights and subject to all the disabilities which attach to such life-tenancies. By no act of his or his vendee, could the title of the heir in reversion be effected. The statute of limitations could not begin to run against the reversioners until his death. On the other hand, if the possession of the land was taken and held, not in the right of the wife as owner, she having no muniment of title, but in the right of D. H. Bishop himself, then that is an end to the controversy, and plaintiffs cannot recover; so, in that case, Bishop’s special acts of ownership and dispositions of all the property are wholly immaterial. We cannot see, therefore, that the decision by the jury of the pivotal question, whether the possession was taken as the wife’s property, the husband then recognizing it as hers, can properly be influenced by his subsequent special acts of ownership, since in neither case can such acts take from the plaintiffs’ right of recovery, nor add to the defendants ’ defense. They shed no light on the main inquiry, and are calculated to mislead the jury. It is not a question, we repeat, whether a title in the wife has been defeated by the adverse possession of her husband, which could not legally be accomplished, but whether the title, or that which was claimed and recognized as title, was in the husband or the wife. As this question shall be decided by the jury, so should the verdict go. The affidavit made by D. H. Bishop when he conveyed to McLeod was clearly inadmissible. Equitable estoppels cannot be setup in real actions at law. The charges requested by the defendants were properly refused. For the errors mentioned, the judgment must be reversed, and the cause remanded. Reversed and remanded.