Opinion
7 Div. 835.
May 24, 1917.
Appeal from Shelby County Court; E. S. Lyman, Judge.
Riddle Ellis, of Columbiana, and Jas. M. Kidd, of Birmingham, for appellants. Browne, Leeper Koenig, of Columbiana, and Harrison Welch, of Talladega, for appellee.
Appellee filed this, his bill to quiet title, as is authorized by statute. Code, §§ 5443-5449. Appellants answered, setting up title or claim to the lands in question through a will and trust deed executed by John W. Kidd in 1858, by which the testator devised the lands to his wife and his children by her, thereby creating two estates, one, an estate to his wife and her children during the life of the wife, and one, a remainder in fee to the children after her death. The reporter will set out the will and trust deed.
The will and deed have been heretofore three times before this court for construction. See Kidd v. Borum, 181 Ala. 144, 61 So. 100, Ann. Cas. 1915C, 1226, Cruse v. Kidd, 195 Ala. 22, 70 So. 166, and Kidd v. Cruse, 76 So. 59. The result of these several decisions is the holding, that the will passed title to the wife and her children as above indicated — that is, a life estate to the wife, and an estate to her children during her life — thus making them tenants in common of the estate for the life of the wife, and the children the takers of the remainder in fee after her death, that the trust created by the will or deed of trust was a mere naked or passive trust, constituting simply a repository or a conduit for the legal title, and that by virtue of our statutes (Code, §§ 3408, 3409) the legal title passed to the beneficiaries named in the will, and so passed, even though the executors or trustees named in the will, or others, never executed conveyances as provided; and that there was no merger of the estate for the life of the wife, into the remainder in fee, in such sort as that the title in remainder and in fee could be defeated by adverse possession during the existence and continuance of the life estate. The reasons and the authorities upon which we were led to these conclusions are stated in the opinions on the former appeals, above referred to; and no good purpose can be here served by repeating them. We have been shown no good reason for departing from the holding in the last of these cases, which modified the opinion, but not the decision, in the case of Cruse et al. v. Kidd, 195 Ala. 22, 70 So. 166. We, therefore, now reaffirm what was said on the appeal of Kidd v. Cruse et al., as to the proper construction of the will and trust deed. It, therefore, results that the appellants in this case, under the undisputed facts, have title to the land in question, unless the title has been diverted, cut off, or defeated, by adverse possession. The sole basis of complainant's (appellee's) claim of title is that the land was acquired by him, and those through whom he claims title by adverse possession, from John W. Kidd or those claiming under him by the will and trust deed to which we have referred.
Ante, p. 293.
The record indisputably showed that the testator once had title, and that it passed by the will, unless cut off or prevented from so passing by virtue of adverse possession, on the part of complainant's predecessors in claim.
Complainant's claim of title is that one J. V. McGraw, a son-in-law of the testator through marriage with a daughter of testator by a former wife, and who was not one of the devisees mentioned in the will, but one who had been otherwise provided for, by way of advancements, entered upon, took possession of, and inclosed the land in question, and claimed it as his own and adversely to John W. Kidd, the true owner; that he so took possession long before the death of John W. Kidd, and that he held it for a sufficient length of time to defeat Kidd's title before the latter's death, but, if not for sufficient length of time, before Kidd's death, to acquire title, that the same possession continued, after Kidd's death, until title was acquired by McGraw, later passing by his will to A. W. McGraw, by power of attorney from A. W. McGraw to A. E. McGraw, by deed to Alfred Austell, thence by will to Letitia Fitch for life, and at her death to her children; and from those by deed and judicial sales to Cecil Browne, complainant.
The evidence in the case on the issue of adverse possession is very voluminous. The complainant contends, and the trial court found, that J. V. McGraw acquired title to the land in question by adverse possession, irrespective of any question as to a proper construction of the will of John W. Kidd.
The questions of adverse possession in this case are, of course, entirely different from what they were, in the other appeals involving the will and trust deed. In those cases the adverse possession had its inception, and chief continuance, after the death of John W. Kidd, the testator, and during the existence of the life estate. Here the adverse possession began, if at all, before the death of the testator, and the statute was therefore started to running against him, and, under some phases of the testimony, had completed the bar, before the death of the testator, and, therefore before the creation of any life estate or remainder, which was done solely by the will of John W. Kidd. Under this latter theory, of course, no title passed by the will to either a life estate or a remainder.
If the bar was not perfected for lack of time before the death of the testator, the possession is shown to have continued, without any break, for a sufficient length of time to perfect the bar, provided the possession was of the character, and embraced the necessary elements, to make it adverse. If the possession was adverse against John W. Kidd at his death, it did not cease to be so, against the devisees of either the life estate or the remainder attempted to be created by the will. Once the statute of limitations begins to run, it continues to run, although subsequent disabilities may arise. If the statute begins to run against one in his life tenure, his death does not suspend the running, though his heirs be infants or lunatics, who cannot sue; nor can he suspend the statute by devising the lands or property to infants, or by creating life estates and remainders as to such property. The heirs or devisees are in no better position than the ancestor or testator would have been in had he lived; if he would be barred, then the heirs or devisees will be barred, no matter what their age or condition may be, or what estate they acquired. Doe v. Thorp, 8 Ala. 253; Smith v. Roberts, 62 Ala. 83; Daniel v. Day, 51 Ala. 431; 1 Rul. Case Law, p. 744; Sutton v. Clark, 59 S.C. 440, 38 S.E. 150, 82 Am. St. Rep. 855, and note.
We agree with the trial judge that this evidence shows that J. V. McGraw was in the open, notorious, exclusive, and adverse possession of the land in question at the time of his death, which occurred in 1867, and that he had so held the land for more than 10 years next preceding, and that the title was therefore divested out of John W. Kidd during his lifetime, and vested in J. V. McGraw. We feel that there can be no doubt that J. V. McGraw had the possession and control of all the land in question. It was inclosed with fences by him, and much of it was cultivated by him or his tenants, who built houses on parts of it; and it was assessed for taxes by him. There is lacking no act which an owner would exercise over his own land, situated as was this land; in fact, the proof shows that it was treated by him just as he treated other adjoining land owned by him, and that for years and years — both before and after the death of both J. V. McGraw and John W. Kidd — this land was known, and spoken of, in the community as the land of McGraw. This is not, of course, evidence of title, but it is evidence of his claim of ownership, and of the notoriety of his claim, and to show notice on the part of Kidd and those claiming under him of the claim of McGraw. McGraw disposed of this land by his will just as he did of other lands, owned by him, as to title of which there is no question. Another circumstance is that McGraw, for many years prior to his death, assessed the land for taxes, while Kidd, in his lifetime, and those claiming under his will did not assess it or make claim thereto. While McGraw was the son-in-law of Kidd, and appellants claim and insist that McGraw's possession was permissive, and not adverse, yet we fail to find evidence sufficient to show that it was permissive, and are convinced, on the contrary, that McGraw's possession was adverse. His various acts in fencing and cultivating the land, building houses thereon, and assessing it for taxes, for 15 years before his death, taken in connection with Kidd's failure to so assess during this time, or otherwise to claim, cannot be explained on the theory that the possession was permissive and not adverse. While, of course, there is a conflict in the evidence as to some of the possessory acts — such as clearing and fencing the land, and building houses thereon — and as to the exact locations of the fences, houses, etc., and when the acts were done, yet this is nothing more than natural to expect, where so many witnesses are examined, and where the acts and facts to which they testify occurred more than a half century ago; and in the light of the whole evidence we feel no doubt that J. V. McGraw acquired title to this land by adverse possession during his lifetime and the lifetime of John W. Kidd. The conduct of both, as to this land, cannot be otherwise explained.
It is true no deed or attempted conveyance is shown, or offered to be shown, whereby Kidd conveyed, or attempted to convey, to McGraw, nor is it claimed that McGraw ever had any color of title to the land in question; but it is shown that he had the actual possession and control of all, for more than 10 years next before his death and during the last 10 years of the life of John W. Kidd.
Adverse possession does not depend or rely upon an original title; it relies on no documentary title; it concedes that the possession was wrong, and not right, in its inception. State v. Conner, 69 Ala. 212.
It is not necessary that land be inclosed or cultivated, because capable of being so done, to constitute adverse possession. The kind of possession is determined by the condition of the land, not with reference to its being changed into another state, but to its then present state. Openness, notoriety, and exclusiveness are shown by acts which at the time, considering the state of the land, comport with ownership, such as would ordinarily be done by an owner for his own use, and for the exclusion of others. Goodson v. Brothers, 111 Ala. 589, 20 So. 443.
The elements of such a title are: (1) Such possession as the land reasonably admits of; (2) openness and notoriety and exclusiveness of possession; (3) hostility towards everybody else in respect of the possession; (4) holding the possession under a claim of right or claim or color of title; and (5) continuity for the statutory period of 10 years. Goodson v. Brothers, supra.
To the Constitution of the first element — such possession as the land reasonably admits of — it is not necessary that land which is uninclosed and uncultivated should be inclosed and cultivated merely because it was capable of inclosure and cultivation. The possession is gauged by the actual state of the land, and not with reference to its capability of being changed into another state which would reasonably admit of a different character of possession. Openness and notoriety and exclusiveness of possession are shown by such acts in respect of the land in its condition at the time as comport with ownership, such acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable; and near akin to these are the acts evidencing the element of hostility towards all the world.
Every one of the above elements is shown to have been in J. V. McGraw's possession, except that he had no color of title; but those who have claimed and held this land through him since his death have had color of title, if not paper title. If McGraw had acquired title by adverse possession, then, of course, it passed by his will.
The character of the possession of those claiming under J. V. McGraw since his death is not now, and never was, different from that of J. V. McGraw during his life and during the life of John W. Kidd. This condition of possession and occupancy of this land has continued without a break, or a claim against the title of J. V. McGraw, for more than half a century; his title was never questioned by John W. Kidd or his devisees, or by any one else until shortly before this suit was brought. To us, the conclusion is irresistible that the possession of J. V. McGraw, beginning in the '40's or '50's and continuing uninterruptedly until his death in the latter part of the '60's, followed by that of his successors, continuing until the present time, was and is adverse. This possession, beginning, as it did, during the lifetime of John W. Kidd, and there being nothing to show or indicate that it was permissive or in recognition of Kidd's title, except the fact of the relation by affinity, and that no deed or writing is shown by which the title passed, or was intended to be passed, must have been adverse; else some other circumstance would appear, to show the contrary.
Aside from the statute of limitations, intended for the repose of society and of civil rights, the doctrine of prescription is here applicable, and impels us to hold that J. V. McGraw and his successors acquired title.
This court has adhered, with uniform tenacity, to the doctrine of prescription, and has repeatedly held that the lapse of 20 years, without recognition of right, or admission of liability, operates an absolute rule of repose. McArthur v. Carrie, 32 Ala. 88, 70 Am. Dec. 529 (leading case); Semple v. Glenn, 91 Ala. 245, 6 So. 46, 9 So. 265, 24 Am. St. Rep. 894.
The doctrine is broader and more comprehensive than a mere statute of limitations, although based on analogous principles of repose to society. Garrett v. Garrett, 69 Ala. 429; McArthur v. Carrie, supra; Harrison v. Heflin, 54 Ala. 552; Greenlees v. Greenlees, 62 Ala. 330; Baker v. Prewitt, 64 Ala. 551; Matthews v. McDade, 72 Ala. 377; Bozeman v. Bozeman, 82 Ala. 389, 2 So. 732.
After 30 or 40 years of uninterrupted possession it is permissible to invoke the rule of prescription in favor of a due execution of sale, and of the regularity and validity of a conveyance, sufficient in law to pass the estate and title of the grantor. 72 Ala. 377; Doe v. Ladd, 77 Ala. 235.
"Twenty years is a period of time beyond which the courts are not disposed to permit past human transactions to be disturbed by judicial investigation. 32 Ala. 75, 70 Am. Dec. 529; 69 Ala. 429; 64 Ala. 551. In Sims v. Aughtery, 4 Strob. Eq. (S.C.) 103, the following language was used by the Supreme Court of South Carolina: 'Twenty years' continued possession will raise the presumption of a grant from the state of deeds, wills, administrations, sales, partitions, decrees, and * * * of almost anything that may be necessary to the quieting of title, which no one has disturbed during all that period.' 32 Ala. 83 -91, 70 Am. Dec. 529. And this court has held that this presumption will not be defeated by infancy, coverture, or other personal disabilities. McCartney v. Bone, 40 Ala. 536; 69 Ala. 429. Nor will its operation be suspended by causes which have been legally adjudged to suspend the running of statutes of limitation. 54 Ala. 552; 72 Ala. 388; Jordan v. McClure Co., 170 Ala. 316, 54 So. 423."
In Alabama, as in most of the states, there is a growing disposition to fix a period, beyond which human transactions shall not be open to judicial investigation, even in cases for which no statutory limitation has been provided. This period is sometimes longer and sometimes shorter, dependent on the nature of the property and the character of the transaction. By common consent, 20 years' time has been agreed on as the period after which many of the most solemn transactions will be presumed to be settled and closed. See 2 Story's Eq. 1028b.
This doctrine does not apply, of course, to estates in reversion or remainder, in which the adverse holding has its inception and its continuance during the existence of a preceding life estate or an estate for years, because the title thus acquired is from the preceding estate, and is of necessity in recognition of the estate in reversion or remainder.
Nor does it apply to cases in which the possession is permissive or in recognition of the title; it is then not adverse, and the possession is that of the holder of the title — not against or adverse to his title.
We, therefore, fully agree with the conclusion and decree of the trial court, that the respondents (appellants here) showed no title to the land in controversy, and the decree of the lower court is accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.