Inglis v. Webb

HEAD, J. Statutory real action by appellee against appellant. The plaintiff’s evidence tended to show that sometime, from 1858 to 1860, Elijah Inglis, Jr., by parol, exchanged the land in suit, for the interests of his three sisters, Letitia, Ann and Jane Inglis, in certain other lands inherited from their father; or purchased the lands in suit, for his sisters, from G. M. Harris, in exchange for their interests in said inherited lands ; that the sisters went into possession, claiming title under such purchase or exchange, and occupied them, as their place of residence, until Letitia died about the beginning of, or during, the civil war. No written evidence of the exchange was introduced or shown to have ex-isteid. Jane died sometime during the war; that about, or just after the close of the war, Ann, the only remaining sister, removed from the la,nds and thereafter resided in a little house built for her by said Elijah Inglis, in his yard, until her death in 1895 ; that said Elijah also died in 1895, after the death of Ann ; that after Ann’s removal from the place, said Elijah controlled the lands, rented them and collected the rents, but set up no claim of title; that he admitted, at various times, that the [392] lands belonged to her, and that he had given them to the three sisters in exchange for their interests in the inherited lands. The defendant’s evidence did not tend to contradict any of the tendencies of plaintiff’s evidence of facts occurring prior to the removal of Ann from the place. It tended to show that after that event, said Elijah had control of the lands, rented them in his own name, collected the rents and used them, and claimed the lands as his own; that said Ann, about the year 1868, made an agreement with him that if he would care and provide for her during her life, he might have the lands ; that she had paid $250 thereon, out of the proceeds of her interest in the inherited lands, and if he would pay the balance to Harris and care for her during her life, he could take the land; that she only wanted a support during her life : that a few years before her death she divided her personal effects among the children of said Elijah, and stated at the time that she had turned the land over to him ; that she had nothing left. The evidence further tended to show, that the said Ann had some live stock which she sold from time to time ; that she had no separate crib but fed it from said Inglis’ ; that she was but little expense to any one else until the last few years of her life, when she was paralyzed and helpless, and needed much attention. The defendant also introduced in evidence a deed, in due form, executed by G. M. Harris and wife to said Elijah R. Inglis, on may 14, 1871, upon a recited consideration of $1,000, in hand paid, purporting to convey to the grantee a fee simple title to the lands in suit, with covenants of warranty and for quiet and peaceable possession. There was no evidence that said Ann or plaintiff had any notice of the execution of the deed, or that there was, any change, in any respect, in said Elijah’s occupation, management or use of the land after its execution. The plaintiff, Letitia Webb, and said Elijah were the sole heirs of Ann. The defendant is a son of said Elijah. ' Plaintiff claimed and recovered, as an heir of said Ann, a half interest in the land. The defendant claimed that his father was sole owner. The bill of exceptions recites that it was admitted on [393] the trial that both the plaintiff and defendant claim title through G. M. Harris. As to how or by -whom the lands in controversy were obtained from-Harris, the record, as the foregoing statement of the case shows, is indefinite. In one phase of the evidence, Elijah Inglis purchased from Harris and then exchanged with his three sisters for their interest in the inherited lands. The evidence does not 'show what the terms of ■ his purchase. were — whether he paid the purchase money or bought on credit. From another phase of the evidence it may be inferred that the sisters were the purchasers directly from Harris, and, at least, as late as the year 1868, had not paid all the purchase money.. The record is silent as to whether the purchase money was,paid after that, time or not. There is no evidence of any express recognition by Ann Inglis, after 1868, that there was any purchase-money owing'Harris. This action was brought December 9, 1895 — more than twenty, years after the last recognition of unpaid purchase money. ,. When Letitia Inglis died said Elijah inherited fi;om her an undivided interest in her undivided interest in the land, charged with whatever obligations rested on it for purchase money. The same when Jane died. ‘.By these inheritances he became a tenant in common with Ann of these' lands, and all the legal incidents of. that relation attached to him. After the death of Jane; Ann moved off the premises and lived on the premises of Elijah. Elijah went into possession of these lands, receiving the rents, etc. The presumption of law, which must prevail unless rebutted by proof, is that he went in as tenant in common with Ann and held for her as well as for himself. Unrebutted, the presumption will prevail that his subsequent possession was the possession of Ann and himself to the same extent and effect as if both jointly actually occupied and enjoyed the land; so that, in that case, the result under the facts disclosed by the record, was that Elijah, owning undivided interests charged with purchase money owing-Harris, and Ann owing an undivided interest charged with purchase money owing Harris, w-ent into joint possession of the lands and thereafter held as owners, for more than twenty years after any recognition by Ann of any, right or interest of -Harris in tire land, or claim thereon for [394] purchase money. They occupied in' effect the position of two mortgagors — tenants in common of the mortgaged land — remaining in possession more than twenty years after law-day, with no express recognition by one of them of the continuance of the security. In such case as to the party who had not recognized the continuance of the security the debt is presumed to have been paid, and his title is perfect by prescription.—Relfe v. Relfe, 34 Ala. 500; Shorter v. Frazer, 64 Ala. 74; Chapman v. Lee, Ib. 483 ; Tayloe v. Dugger, 66 Ala. 444; Hancock v. Kelly, 81 Ala. 368 ; Moses Bros. v. Johnson, 88 Ala. 517. The deed'which Harris executed to Elijah Inglis in 1871, so far as there was' any evidence to show, was without the knowledge of Ann Inglis., If, as we have said was the legal presumption, to be applied unless rebutted, (and the verdict is to the effect that it was not rebutted) the possession of Elijah was the possession of both Ann and himself, he had no right to purchase and acquire an outstanding title and thus defeat her title. If he paid, the purchase money due Harris and took a conveyance to himself, it was no more than the removal of an incumbrance upon the common' property which inured to Ann to the extent of her interest in the lands. For collection of authorities see 11 Am. & Eng. Encyc. of Law, 1082; Ib. 1078, et seq. In any phase of the evidence that deed is of no effect in this ease. Ann’s possession of the land, at that time, by and through her co-tenant, Elijah, could not be affected, nor its nature or legal effect changed, by any act of her co-tenant done without her knowledge or consent; and although the legal title to' the land might still have been in Harris at the time the deed was executed, her jpósséssion was running and did run to the period of prescription, being maintained for her, as her co-tenant, by the very person to whom, without her knowledge or consent the conveyance was made. If it be true, as a principle of law, that the execution of -the deed conveyed the legal title to Elijah, rendering a resort to a court of equity by Ann necessary to secure the title to the extent of her interest in the lands, yet the continued possession of Ann for moré than twenty years after execution of the deed gave her the legal title, as effectually as if it had been decreed to her by a court of equity. The several charges given at the request of the plain [395] tiff were free from error, and those requested by the'defendant were properly refused. The question put to Sam Inglis called for declarations of his father as to the sources of .title,-and. w¿is propprly refused — a principle so often decided by. this court, that a citation-of authorities i-s unnecessary.'. . : There was evidence tending to rebut the -presumption that Elijah Euglis went into possession as - a tenant-in common with Ann, and that-he virtually purchased t'he land from Ann, but -the jury found agaiiist thaf version. Affirmed.