Felder v. Harper , 12 Ala. 612 ( 1847 )

ORMOND, J.

It is not contended that the deed Under which the defendant asserts title was duly recorded, and the only question is, whether the deed without registration, is sufficient to secure the remainder to the children of Mrs. Fel-der, after the termination of the life estate of the tenant for life.

This question appears to be decisively settled, by the cases of Myers v. Peek, 2 Ala. R. 648; The Bank v. Croft, 6 Id. 622; Johnson v. The Bank, 7 Id. 379, and Tatum v. Manning, 9 Id. 144. In those cases, it is held, that unless the precedent estate is supported by a valuable consideration, the reversion, or remainder, is void after the lapse of three years’ possession by the grantee, without demand made, or pursued by due course of law, as against the creditors, or purchasers of the person so remaining in possession, unless such reversion, or remainder, was declared by will, or by deed, recorded as the .statute directs. The statute is not confined to a reservation in favor of the donor, but applies equally, to a reservation in favor of third persons. The language of the act is, “ or where any reservation, or limitation, shall be pretended to have been made of a use, or property, by way of condition, reversion, remainder, or otherwise, in goods or chattels, the possession whereof,” &c. It cannot, we think, admit of doubt, that a remainder, in favor of a third person, is within the letter of the statute, as well as the mischief intended to be prevented.

It is however contended, that the deed from Budd, to John Davis, is upon a valuable consideration. The deed recites, that it is made upon the. consideration of $10, paid by the latter, to the former. This is evidently on its face a mere nominal consideration, the conveyance being of a life estate in two slaves, in the event the grantee died without a wife or children. It is a conveyance from a father, to his son, which is not to take effect until after the death of the father, and is clearly on its face a gift, and cannot be converted into a sale, by the insertion in the deed, of a mere nominal consideration.

The argument, that the court in its charge, assumed, that possession had remained with the donee for three years, and thereby prevented an inquiry by the jury into the fact, whether such a length of possession had been proved, cannot be urged in this court. No question was raised upon this point in the-court below, so far as we can judge from the bill of exceptions, but the question there seems to have been, whether the deed was valid without registration, as against a purchaser for a valuable consideration from the tenant for life. It is stated in the bill of exceptions, that John Davis went into possession in 1838, but at what time during the year is not set out. The sale was made to the plaintiff on the Tth June, 1841. It is clear, therefore, that the possession may have remained with John Davis, and those holding under him, in virtue of the deed of trust, for more than three years previous to the sale to the plaintiff, and as this question was not raised in the court below, we must presume that such was the fact. It is inconceivable, if the fact were otherwise, that it should not have been made distinctly to appear upon the record, as there would then have been no pretence that the statute of frauds applied to the case.

Let the judgment be affirmed.