Winters v. Powell

¡8AYRE, J. This is an action of ejectment brought by appellees, Avho claimed as children and heirs of George PoavcII, deceased, against appellant, Winters. Defendant (appellant) has traced an unbroken paper title back to one Rylant, Avho was in possession of the land at the date of his sale to one Pinson in 1868, two links being furnished by a deed from Pinson to Fannie PoAvell, AvidoAv of George, in 1888, and the deed of Fannie PoavcII, in 1893, to one Batson, Avho stands in the series as one of defendant’s predecessors in title. — 428 — The testimony for defendant went to show that Batson had known Mrs. Powell and the land in controversy since 1886, at which time she was in possession, cultivating and claiming to own the same, and so remained until the time of his purchase from her, when he paid to her the amount named in her deed, and received possession from her. At that time she claimed to own the land, and exhibited to him her deed from Pinson as the source of her title. Batson testified that at the time of his purchase he had no knowledge or information that any one other than Fannie Powell owned or claimed to own the land. Batson conveyed to N. C. Willing-ham on a valuable consideration, and she, having married defendant, died, leaving a will by which she devised the land to her husband. On the other hand, Pinson, being then in the possession and ownership of the land, in 1868 had sold it to George Powell. No deed was executed, but, instead, Pinson put Powell in possession, and in 1871 delivered the deed he had received from Rylant, with the following indorsement thereon: “We hereby transfer the within deed to George Powell * * * to have and to hold to their [his] full use and benefit, hereby relinquishing all claim against said described land” — after signing the same in the presence of a witness. Neither the deed from Rylant to Pinson nor Pinson’s indorsement to Powell has ever been recorded. Powell, with his family, occupied the land as a homestead under undisputed claim of ownership until 1879, when he died. The relevant part of his will, which was shortly thereafter duly probated and recorded, after providing for the payment of debts and funeral expenses, made the following disposition: “I give my wife Fannie Powell, all my real estate and during her lifetime and to be used by her for the support and benefit of the family — 429 — and herself after such debts and expenses be paid.” The property in suit was not described in the will. Mrs. Powell died in 1910, and plaintiffs’ contention, allowed in the court below, is that thereupon they became entitled to sue and have possession of the land. Error is attributed to the trial court on two grounds: (1) That Mrs. Powell and those under whom defendant claims held the land adversely to plaintiff’s for more than 10 years. (2) That defendant is a bona fide purchaser for value without notice. 1. The contention that the widow Powell, and those through whom defendant traces title back to her, held adversely to the plaintiff’s during her lifetime, when considered in connection with the evidence offered to sustain it, concedes — at least it does not deny — that title had vested in George Powell, and, in consequence, that his relict received and for years held possession under his will. The argument is that, when the widow Powell took a deed from Pinson and put it upon record, she put plaintiffs íipou notice of her adverse holding, and thereupon plaintiffs had a right to go into equity to remove the cloud cast by her deed upon their title in remainder, and, quoting the opinion in Woodstock Iron Company v. Fullenwider, 87 Ala. 584, 6 South. 197, 13 Am. St. Rep. 73, “the failure to exercise this right for over 20 years is such laches as authorizes the inference that the right to do so is barred in any one of the modes in which that result may be effected.” A remainderman may, for the establishment of his ultimate right, maintain a bill in equity to remove a cloud from his title in remainder pending the particular estate without in any wise drawing into question or affecting the' interest of the life tenant.—Lansden v. Bone, 90 Ala. 446, 8 South. 65. But a cloud upon title is that which appears to be, but in laAv and in fact is — 430 — not, title. The only harm which can result from a cloud is that the holder of the title may find his property unmarketable, and at some distant time may have difficulty in producing the evidence requisite to rebut it, or to'show its true nature. “But if,” as Judge Freeman has remarked in his note on the Fullenwider Case, 13 Am. St. Rep. 73, “he chooses to suffer these inconveniences * * no presumption can justly be indulged from the failure to bring an action to remove a cloud upon a title, because, as a cloud is not title, it may continue to the end of the world without becoming anything more substantial.” However, it seems there may be cases in which such a bill, so timed', is necessary to prevent the destruction of the rights of reversioners or remaindermen by the lapse of 20 years under the doctrine of prescription. An example is found in Woodstock Co. v. Fullenwider, supra, relied upon by appellant. As was made plain in Robinson v. Pierce, 118 Ala. 273, 24 South. 984, 45 L. R. A. 66, 72 Am. St. Rep. 160, the ratio decidendi of that case, however debatable, is to be found in the doctrine of estoppel which found application in the fact that, while the proceedings in the probate court for the sale of lands against which the plaintiff there claimed were void in law, they were effective to vest an equitable title in the purchaser, and put upon the remainderman the necessity of doing-equity as a condition precedent to the exercise of equity powers for his relief — specifically,' in that case it was necessary that the remaindermen • tender to the purchaser the amount bid at the sale under which the defendant claimed. The ruling was that a failure for more than 20 years to exercise the right to file a bill, dependent upon an offer to do the specific equity which the proceedings for the sale of the land had devolved upon plaintiffs, along with a neglect for that length of — 431 — time to do that equity, ivas such laches as authorized an inference, cognizable in the law court, that the right to do so had been barred in any one of the modes in which that result might have been effected. There lias been a disposition to withhold approval of that case; but we need not pursue the subject further, for in Bolen v. Hoven, 143 Ala. 652, 39 South. 379, where, as here, there ivas no element of estoppel, this court denied the identical proposition now urged by appellant, stating the rule which obtains in such cases in this language: “Until the termination of the life estate, the remainderman,” or, we may add, the reversioner, as here, “had no right of action for the recovery of the possession of the land. The statute of limitations can never run against the remainderman during the existence of the life estate, for the reason that no cause or right of action is in the remainderman, nor can there be any adverse possession as to him. For like reason there can be no ouster of a remainderman who has neither the possession, nor right of possession, during the life of the life tenant”—citing Pickett v. Pope, 74 Ala. 122, where our statutes on the subject (now sections 3406 and 3420 of the Code 1907) are referred to, and some other of our cases on the subject. Several cases to the same effect are cited in Blakeney v. DuBose, 167 Ala. 638, 52 South. 746. Identical considerations prevent the imputation of laches to appellees. They have not been in default in the performance of any equitable duty to appellant. Prior to the death of Mrs. Powell there was never a time when they could have had judgment or decree operative presently upon the possession or enjoyment of the property. Where there has been no default in duty nor any delay in the assertion of rights, there can be no prescription. Robinson v. Pierce, referred to in argument by appellant — 432 — as if it supported his view of the case, was also different. There the trustee’s deed, which stood in the way of the remaindermen, though its execution and delivery constituted a breach of trust, did nevertheless convey the legal title, and neglect was imputed to the remaindermen in that they failed to pursue by bill in equity the only remedy which would ever in any event be open to them. The conveyance by the tenant for life, though it purported to convey the fee, was effective only to pass the estate of the grantor.—McMichael v. Craig, 105 Ala. 382, 16 South. 883; Hall v. Condon, 164 Ala. 393, 51 South. 20. Since, as we have seen, possession taken under it imposed upon the reversioners, no duty of activity pending the life of the grantor, no more did the less significant fact of recording the deed. Nor did that record carry notice to the reversioners of any change in the nature of the right under which the parties to that deed claimed to hold, if that were important. There was no privity between the tenant for life and the reversioners. “To hold the proprietors of land to take notice of the record of deeds, to determine whether some stranger has without right made conveyance of. their lands, would be a most dangerous doctrine, and cannot be sustained with any color of reason or authority.”—Bates v. Norcross, 14 Pick. (Mass.) 224. 2. We find no satisfactory ground upon which to rest a decision that appellant Avas a purchaser for value without notice Avithin the purview of the statute declaring all conveyances of real estate inoperative and void as to purchasers for valuable consideration without notice, unless the same have been recorded before the accrual of the right of such purchasers (Code of 1907, § 3383), or Avithin three months from their date, as the statute then Avas (Code of 1876, § 2166).' A — 433 — fconcession that Pinson’s release to Powell, indorsed upon Rylant’s deed to Pinson, was a conveyance within the meaning of that statute, would not necessarily lead to a judgment for appellant. Powell’s title did not depend upon the release, but we cannot conceive that he was, or that those holding under him are, in any worse case because- he took it. He held possession of the land adversely and under undisputed right for more than ten years prior to his death, so that Pinson’s deed to his (Powell’s) widow, of date nearly 20 years after Powell went into possession under bis pnrrhgsp....passed uo title toJber. Apart from the effect which appellant would ascribe to Powell’s failure to record his title by release, so to speak, neither the widow’s deed to Batson, nor the subsequent deeds under which appellant claims, passed any title as against the reversioners; for, where no title passes by a conveyance for the reason that the true title is in a person other than the vendor, the fact that the purchaser paid value and had no notice is immaterial, and, of course, he can have no protection as against the real owner or his successors in title unless by force of statute or on the principle of estoppel.— 23 Am. & Eng. Encyc., p. .482. There is in this case no element of estoppel; and the subsequent purchasers of whom the statute speaks and whom it intends to protect are those who claim title under the same grantor as those against whom its protection is afforded. — 2 Dev. Deeds (3d Ed.), p. 1314. Mrs. Powell had no title or interest beyond her life estate. As to the interest in reversion she was a stranger. Neither her declarations as to the character and extent of the interest claimed by her, nor her exhibition of a deed from Pinson, who at the time of its execution had no title, will authorize a judgment destructive of the reversion. Her exhibition of that deed was no more than a declara — 434 — tion of title, and that of a questionable title, for its recital of a merely nominal consideration was enough to put her vendee on notice of its true state. “A purchaser must be bound to inquire whether, beyond his OAvn declarations, his vendor has any title to the property he is selling. Otherwise it would be in the power of any agent, tenant, or mere trespasser to deprive the owner of his property by a sale. To entitle himself to protection the purchaser must have purchased the legal title, and not be a mere purchaser without semblance of title.”—Dudley v. Witter, 46 Ala. 664. On the undisputed facts, the trial court properly gave the general charge for the appellees, and its judgment will be affirmed. Affirmed. All the Justices concur, except McClellan and Somerville, JJ., dissenting.