Washington v. Norwood

DOWDELL, J. The bill in ¡this case is filed by the appellant, J. F. Washington as administrator of William Washington, deceased, to set aside an alleged fraudulent conveyance, and to subject certain lands in the hands of the alleged fraudulent grantee to the payment of the debt due from the grantor to the complainant’s intestate. The bill and exhibits show the following state of facts: In April, 1878/ Henry Bunn died intestate in Jackson county, Ala., leaving a large estate, consisting of real and personal property. On the 1st day of June, 1878, letters of administration were duly and regularly issued by the probate court of said county to John P. and Joel S. Timberlake as administrators of said estate, who entered upon the administration, having executed a bond in the sum of $50,000, with William Washington, complainant's intestate, J. F. Martin, T. M, Allison (who are not sued, they being dead and their estates insolvent) and Samuel C. Norwood, respondent’s grantor, as sureties. On the 11th day of August, 1892, said-'afiministrators made a final settlement in the probate court of said county, and decrees were rendered in favor of Beulah Bunn and John T. Bunn, minor heirs of said estate, for the respective amounts due on their distributive shares. On the 6th day of February, 1893, said decrees not having been paid, said Beulah and John T. Bunn filed their bill in chancery against said administrators, and J. F. Washington, as the administrator of the estate of William Washington, deceased, to enforce the collection of their said decrees. On ithe 7th day of May, 1898, said cause proceeded to final decree in the chancery court against said Washington as administrator in favor of said Beulah Bunn and John T. Bunn for the amount of their said decrees in the probate court, and which the complainant was compelled to and did pay. The present bill proceeds \ipon the theory that Samuel O. Nor-wood was liable to the complainant as co-surety with Ms intestate on said administration bond by way of contribution, to the amount of one-half of said decrees, and seeks to condemn the lands owned by him at the time of the execution of said bond., and subsequently — 388 — conveyed to his son, Samuel W. Norwood, the respondent, which said conveyance is alleged to he voluntary, fraudulent and void. The alleged fraudulent conveyance of Samuel C. Norwood to S. W. Norwood, was executed on the 17th day of May, 1887. The present hill was filed on May 6, 1899. To this bill the respondent pleaded adverse possession of ithe land sought to be condemned since the date of said alleged fraudulent conveyance of May 17, 1887, and the statute of limitations of ten years in bar of the suit. The cause was heard on the sufficiency of said plea, and from the decree of the chancellor sustaining its sufficiency this appeal is prosecuted. The statute of limitations relied on as a bar to this suit is as follows, Code 1896, § 2798: “Civil suits must be commenced after the cause of action has accrued within the' period prescribed in this chapter, and not afterwards.” Section 2795: “Within ten years * * 2. Actions for the recovery of lands, tenements, or hereditaments of the possession thereof, except as otherwise herein provided.” Section 675: “The provisions of this Code prescribing the time within which civil suits must be commenced after tire cause of action has accrued, apply to suits commenced by bill in chancery. The defense invoked by the plea rests, upon the foregoing provisions of the statute, and by them its merit must be tested. If the suit was commenced within ten years after the cause of action accrued, the plea can be no answer to the bill.” 1. An action to set aside a fraudulent conveyance of lands at the suit of an existing creditor of the grantor is a suit in equity for the recovery of lands, and is governed by the statute of limitations of ten years. Code 1896, § 674; Werborn’s Adm’r v. Kahn, 93 Ala. 201, 206; Proskauer v. People’s Savings Bank, 77 Ala. 257; Scruggs v. Decatur M. & L. Co., 86 Ala. 173; Lockard v. Nash, 64 Ala. 385; Snodgrass v. Bank, 25 Ala. 361. 2. A surety is an existing creditor, entitled to pro — 389 — tection against a fraudulent conveyance made by his co-suretv at any time subsequent to the execution of the common obligation. — Bibb v. Freeman, 59 Ala. 612; Werborn's Adm’r v. Kahn, supra; Yeend v. Weeks, 104 Ala. 331, 341; Keel v. Larkin, 72 Ala. 493; Fearn v. Ward, 80 Ala. 555; Bragg v. Patterson, 85 Ala. 233; Jenkins v. Lockard's Adm’r, 66 Ala. 377, 381. 3. Such an action can in no case be maintained until the cause of action accrues, — until the demand becomes due and payable. — Jones v. Massey, 79 Ala. 370; McGhee v. Bank, 93 Ala. 192; Frieder v. Lienkauff, 92 Ala. 469; Bragg v. Patterson, supra; Truss v. Miller, 116 Ala. 497. Bee also note to Ladd v. Judson, 66 Am. St. Rep. 289. 4. The right of action for contribution at law or in equity accrues when one surety pays more than his share of the common liability. — Yeend v. Weeks, supra; Keel v. Larkin, supra; Werborn’s Adm’r v. Kahn, supra; Babcock v. Carter, 117 Ala. 579, 580; Bragg v. Patterson, supra; Bibb v. Freeman, supra; Jenkins v. Lockard’s Adm’r, supra; Preslar v. Stallworth, 37 Ala. 402, 405; Stallworth v. Preslar, 34 Ala. 505. 5. The statute of limitations can in no case begin to run until the cause of action accrues. — Code 1896, §§ 2793, 2795, 674; Pickett v. Pope, 74 Ala. 122, 133; Gafford v. Strauss, 89 Ala. 283; Gindrat v. Railway of Ala., 96 Ala. 162, 166; Truss v. Miller, supra; Pendley v. Madisons Adm’r, 83 Ala. 484; Savannah Railway v. Buford, 106 Ala. 303, 313; Swann v. Lindsey, 70 Ala. 507, 519; 2 Brick. Dig. 220, § 35; Baker v. Barclift, 76 Ala. 414, 417; Lawson’s Admr v. Lay’s Ex’r, 24 Ala. 184; Wyatt’s Adm’r v. Rambo, 29 Ala. 510; Edwards v. Bender, 121 Ala. 77; Owen v. McGhee, 61 Ala. 440, 447; Werborn’s Adm’r v. Kahn, supra; Robinson v. Pierce, 118 Ala. 273; Manning v. Pippen, 86 Ala. 357; Brown v. Campbell, 38 Am. St. Rep. 314, 319; note to Leeds Lumber Co. v. Haworth, 60 Am. St. Rep. 207; Weaver v. Haviland, 40 Am. St. Rep. 631; Gates v. Andrews, 97 Am. Dec. 764; Bump, Fraud. Conv. (3d ed.), § 562; Ang. Lim. 42. With a statement of the above propositions this case — 390 — would be free from difficulty but for tlie question of adverse possession contained in respondent’s plea setting up the statute of limitations in bar of the suit. In dealing .with this question, it needs only to be ascertained what is adverse possession, its nature and incidents, and to avoid a confusion of. it with the statute of limitations. Adverse possession may be said to be a collective fact made up of other facts Avhieh are essential, . constituent elements to the creation of the collective. fact. Among these constituent elements are an actual possession of the res, and an open and notorious assertion of claim of OAvnership hostile to the true owner. After its creation, it is the continuation of this collective fact Avithout interruption for the period fixed by the statute of limitations as a bar to the commencement of a suit that renders, it effective as a defense. It is the thing that puts the statute in motion as contradistinguished from the statute itself and its continuity for a definite period that completes the bar of the statute. Even after the statute has been put in motion a break or interruption in the adverse possession stops the running of the statute. Moreover, a possession to be adverse must operate to disseize or oust some other claimant of his possession or right of possession. In speaking of adverse possession, its nature and incidents, in Pickett v. Pope, 74 Ala. 122, 131, which was an action of ejectment by remaindermen against the grantee of the life tenant claiming to hold adveivsely, it Avas said by this court: “An adverse possession, it will thus be seen, is something more than a mere possession, accompanied with hostile claim of OAvnership. It is very true that, ordinarily, an actual occupancy of lands, accompanied with an open, notorious and uninterrupted claim of OAvnership, Avith intention to claim hostile to the title of the real OAvner, constitutes adverse possession. But this is so, only Avhere the possession of the occupying claimant is hostile claim to the 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 — 391 — 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. * * * It is an axiomatic proposition, which requires no reasoning in i|ts 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 enffeoffed; the remainderman is not so entitled, as long ns 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, hut perfectly compatible with all of his rights. The 'latter, having no right of possession, either actual or constructive, cannot be disseized or ousted, in any proper acceptation of these words. — Tied. Real Prop., § 100; 2 Washb. 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.” In Edwards v. Bender, 121 Ala. 77, in a similar action to Pickett v. Pope, supra, it was said: “The statute of limitations and the doctrine of prescription apply only to those who- could have the right to maintain a suit.” In Gindrat v. Western Railway of Ala. 96 Ala. 162, 166, a suit in equity involving the rights of remainder-men, it was said: “The possession of the defendant during his life, however long, notorious, open, adverse, and under claim of right against all the world, could not ripen into title, or afford a predicate for the presumption of a grant.under the doctrine of prescription, as against these plaintiffs. At no time during the life estate could they, or any one of them, have questioned this possession, and no laches in submitting to what they were without remedy to resist can be imputed to them.” .While these cases relate to (the right of remainder-men to sue after the termination of the life tenancy, a — 392 — right to maintain their suit against one in possession claiming title by reason of -adverse possession of ten years or more is plainly rested upon the doctrine that the possession of the. so-called adverse holder is not antagonistic to nor inconsistent with the rights of the remaindermen during the life of the life tenant, for not until the termination of the life-tenancy does the right of enjoyment of possession come to the remaindermen, and until this time there can be no ouster or disseizin; or, in other -words, no right or cause of action has accrued which by the express terms of the statute, is the time fixed from which the period of limitations necessary to create a bar must begin to run. The statute as clearly and definitely fixes a time when the limitation commences to run as it does the period of time requisite to complete the bar, and that is, after the cause of action has accrued. — Code, § 2793. We can see no reason for withholding the application of the above principles from a suit in equity by a creditor to -set aside a fraudulent conveyance -made by the debtor*, such an action being in its nature a suit for the recovery of land and governed by the statute of limitations the same as actions at law.- — Oode 1896, § 671 and authorities cited above under proposition 1. The possession by the fraudulent grantee of the co-surety, as long as the liability remains -contingent, could no more be said to be antagonistic to 'the claim of a fellow co-surety, than the possession by the grantee of a life-tenant to the claim of the remainderman. In the latter case, the right to sue at law for the recovery of the land is postponed until the termination of the life-tenancy. In the former case, the right to sue in equity for the recovery of the land is postponed until the contingent liability becomes a fixed liability. In both cases the recovery of the possession of the land is necessary to the enjoyment of the right or claim of the plaintiff or complainant in and to the land, in the one instance, to its occupancy and use, and, in the other, to its condemnation and sale for the payment of the debt or charge impressed upon it by the law. It is evident that adverse possession can exist only against him whose393 claim to- the land is obstructed by such possession. A claim against land which is contingent, a right to enjoyment in ¡the future or on the happening of a contingency, which may or may not give a right to its possession and enjoyment, cannot possibly be interfered with or obstructed by the possession of lands which is in itself rightful until the contingency happens. To sustain íthemplea, it must be done upon one or the other of the two following propositions: First, the. complainant’s cause of action must have accrued at the date when the respondent obtained his deed and went into possession; or, second, that (the statute of limitations began to run at the date when the respondent- obtained his deed and went into possession, regardless of when-the complainant’s cause of action accrued. In Jones v. Massey, 79 Ala. 370, a creditors’ bill to subject property fraudulently conveyed, it was said: “It [the statute] does not exempt such suit from the general rule, which prevails in equity, as well as at law, that no suit can be maintained before the cause of action has accrued, and does not confer on a creditor the right to bring a bill to subject property to the payment of his debt before its maturity, and before he is authorized to maintain an action at law on the demand.” This rule is well settled by the authorities cited under proposition 3 above. It cannot be doubted that until a final settlement of an administration there is mo ascertained liability against the sureties on the, bond, and until the liability on the bond becomes fixed by -the settlement, there is no cause of action, and the statute of linxitations does not run in favor of the sureties. So, in this case, no right of action accrued to any one, neither the distributees nor co-sureties, until a decree of the probate or chancery court was rendered ascertaining the devastavit, and fixing the amount of the sureties’ liability. If this complainant stood in the shoes of the distributees, and was bound to begin suit -within the same period allowed them, the bar would not be complete, as the final settlement was made in 1892. It is just as well settled that a surety’s right of action for contribution, at394 law or in.equity, does not arise until lie lias paid the debt, and he becomes, so to speak, subrogated to the right of the obligee. His right i'S founded in natural justice, is contingent until payment, it then becomes a fixed liability against the co-surety. In Yeend v. Weeks, 104 Ala. 331, 341, a bill by the administrator of a surety on an administrator’s bond to set aside conveyances by his co-surety for fraud, and for contribution, it was said: “Another principle equally well settled is, that the liability of the surety on an administrator’s bond or other contingent obligation, makes him a creditor within the provisions of the statute of frauds, from the -date of. the contract, and though, generally, he has no cause of action until he has paid the debt, he is entitled to protection against fraudulent conveyances executed by the principal debtor in the meantime. As was stated in Keel v. Larkin, 72 Ala. 500, supra, the claim of the surety is considered as having existed — so far as to constitute him a creditor — at the time he incurred the contingent liability, being deb it am in presentí, solvendum, in futuro; his subsequent payment of the debt extending back by relation to the date, although no demand, or right of action technically accrues until a subsequent date. The surety is thus, in a sense, sub: rogated to the rights of the creditor, whose claim he has been compelled to pay.” In Werborn’s Adm’r v. Kahn, supra, a bill in equity by a surety to subject personal property fraudulently conveyed by a deceased co-surety, it was said: “Complainant’s right to contribution did not arise until payment of the sum received in full satisfaction of the decree.” It will thus be seen from the foregoing • authorities, that while a surety is a creditor within the statute of frauds, entitled to protection against fraudulent conveyances by his co-surety, yet his right of action against such co-surety does not accrue until he has paid the common obligation. Counsel for appellee rest their contention in support of the plea upon two cases, and only two, decided by this court — Barclay v. Smith, 66 Ala. 230, and — 395 — Snedecor v. Watkins, 71 Ala. 48 — and, as we gather from the opinion of the chancellor in the record, upon these two authorities he bases his decree sustaining the sufficiency of the plea. In itlie first-named case, it was decided, that the purchaser of lands which were, at the time subject to an execution lien, might hold adversely from the date of the conveyance as against a purchaser at a subsequent sale under the execution. We do not think this case as an authority is in conflict with the views we have expressed above, and it-can he differentiated from the case at bar. Adverse possession runs not only against one, holding title with a right of possession, but also against any person having a claim against 'the land with a right of action. In Barclay v. Smith, the execution creditor at the time of the conveyance by the debtor had a present right of action to proceed against the land; or, in other words, his cause of action liad accrued to him. Hence the statute of limitations was put in operation at the. very moment adverse possession by the grantee of the debtor arose. The title of the purchaser at a subsequent sale under the execution was derived through the. lien of the execution and the sale ¡thereunder. The title of the purchaser at. the execution sale having its origin or inception in the execution and the lien it created, against which lien as a claim or right the adverse possession of the debtor’s grantee operated, such title as creating a cause of action was infected with the infirmities attending the origin from which it sprung; or, in other words, as an accrual of a cause of action to the purchaser under the tittle derived through the execution sale, it could not operate to change the .time when the statute of limitations was put in motion as against the lien of the execution by the adverse possession of the grantee of the debtor. In the case of Snedecor v. Watkins, supra, which was a bill to set aside a fraudulent conveyance made by the surety on a guardian’s bond, the facts show that the complainant’s cause of action against the surety accrued more than ten years before the filing of the bill. And the right to file the bill against the fraudulent grantee — 396 — to sett aside the conveyance and condemn the land to the complainant’s demand arose immediately upon the accrual of the 'complainant’s cause of action against the surety. As against this right of the complainant to proceed against the land the adverse possession of the voluntary or fraudulent grantee put in motion the statute of-limitations as soon as the right to sue arose, and not until such right accrued. To hold otherwise would result in the anomalous state of the running of the statute of limitations when there was no debt or demand against which to run, and no person with a right to sue. We cannot assent to what was said in Snedecor v. Watkins, that “it does not change the case that the night of the complainant- to proceed against the guardian’s surety arose within ten years before the commencement of this suit, as the purpose of the proceeding is not to obtain a personal judgment on the debt, nor is it a suit for the land.” In the first place the facts in that case did not present for decision the question in the foregoing quotation, for more than ten years had elapsed at the filing of. the bill since the complainant’s cause of action had accrued. In the next place the facts in Barclay v. Smith made an entirely different case, and when properly understood cannot be considered as an authority for the doctrine asserted in the above extract from the opinion in Snedecor v. Watkins. To adhere to such a doctrine would be not only to oppose the plainest principles of right and equity, but it would also be to ingraft upon the statute by judicial decision a provision which the lawmaking power in its enactment did not contemplate and the very language of ¡the statute f orbids. Our conclusion therefore is, that while the complainant as a co-surety was a creditor within the statute of frauds, and entitled to protection as against voluntary and fraudulent conveyances, yet his cause of action did not accrue until he paid off and discharged the common obligation; and in no event could his cause of- action have accrued until the final settlement by the administrators in 1892, which was within the ten years necessary to complete the bar under the statute, and — 397 — that until such time the possession by the fraudulent grantee could in no sense be said to be. antagonistic to any right or 'Claim of the co-surety in the land, and therefore there could be no adverse possesion by such grantee as against such co-surety of the fraudulent grantor necessary to put the statute of limitations in motion. The decree of the chancellor sustaining the sufficiency of the plea must be reversed and the cause remanded for further proceedings.