Johnson v. Toulmin , 18 Ala. 50 ( 1850 )

CHILTON, J.

It is undoubtedly true as a general proposition, that the possession of one joint tenant, coparcener or tenant in common, is the possession of his co-tenant, and is regarded as in support of their common title — (see 2 Cruise on Real Prop., by Greenl. 393, § 14, and the American cases collected in note 1) — but it is equally well settled, that one tenant in common may disseise another. What acts, however, shall constitute such disseisin, or ouster, is not so well agreed upon by the authorities. The simple fact, that one tenant in common receives the whole profits, is not sufficient to divest the possession of his co-tenant. — Willison v. Watkins, 3 Pet. 51; Chambers v. Chambers, 3 Hawks’ R. 332; 2 Greenl. Cruise, 393. Neither are acts of ownership necessarily to be construed in tenancies in common as acts of disseisin. It is said to depend upon the intent with which they are done, and their notoriety as affording evidence of notice as to the adverse character of the possession.

It seems formerly to have been held, that a sole claim by one tenant, without more, could never change the character of the possession — (2 Cruise, by Greenl. 394, § 15, and noté;) but the current of English, as well as American cases, sustains the doctrine, that an ouster may be presumed from an exclusive and peaceable occupancy for a long space of time.

In Fisher & Taylor v. Prosser, Cowp. 217, the tenant had occupied thirty-six years. Lord Mansfield said, that such length of possession was more than quadruple the time given by the statute for tenants in common to bring their action of account, if they had thought proper to do so, namely, six years: “Butin this case,” he added, “ there is no evidence whatsoever of any account demanded, or of any payment of rents and profits, or of any claim by the lessors of the plaintiff, or of any acknowledgment of title in them, or of those in whom they would now set up a right; therefore I am clearly of opinion, as I was at the trial, that an undisturbed and quiet possession for such a length of time is a sufficient ground for the jury to presume an actual ouster, and that they did right in so presuming.” The other judges concurred in his opinion. It was conceded in that case, that if the tenant in common held possession eo nomine, no length of time would bar his co-tenant; for, holding as tenant in common wa3 an affirmation of his co-tenant’s title, as well as his own. It was further said by Lord Mansfield, “that some ambiguity seems to have arisen from the term “actual ouster,” as if it meant some act accompanied by real force, and as if a turning out by the shoulders was necessary. But that is not. so. A man may come in by a rightful title, and yet hold over adversely without a title.” In Jackson ex dem. Bradt et al. v. Whitbeck, 6 Cowp. R. 632, the same doctrine was asserted by the Supreme Court of New York, upon the authority of the above case in Cowper. In Mehaffy v. Dobbs, 9 Watts’ R. 363, it was held that such presumption of ouster might be indulged from possession exceeding twenty-one years. In Frederick et al v. Gray, 10 S. & R. 182, Tilghman, C. J., says, “ when one tenant in common enters on the whole, and takes the profits of the whole, and claims the whole exclusively for twenty-one years, the jury ought to presume an actual ouster, though none be proved.” In Bolton v. Hamilton, 2 Watts & Serg. 294, the Supreme Court of Pennsylvania review the former decisions of that State, and they engrafted a qualification upon the doctrine, formerly held in the two cases last above cited, holding that where a claim of exclusive ownership by the tenant was manifested by his acts, “ such acts ought so necessarily and notoriously to import a claim of exclusive right, as to apprise the co-tenant of the nature and existence of it;” and a majority of the court held, that although the exclusive perception of the profits by one tenant in common, for a period exceeding twenty-one years, raised a natural presumption of ouster, upon which the jury may find the fact to exist, if it satisfies their mind, yet the law will not, from this fact merely, raise a presumption of such ouster, In Abercrombie v. Baldwin et al. 15 Ala. 363, this court held, as the principle deducible from many authorities, cited in the opinion of the late Chief Justice, that the possession of one tenant in common may become antagonistic, and exclusive of a co-tenant, and will become so, by an unequivocal and notorious denial of the right of his co-tenant.

These authorities, and the cases refered to in them, may suffice to show, that in cases where the title is complete iu the tenants in common, there are circumstances under which an adversary claim to the entirety may be set up by one of the tenants so as to bar the right of his co-tenant by the operation of the statute of limitation. We regard the case of Fisher & Taylor v. Prosser, supra, as correctly stating the law upon this point. It has, so far as we have examined the question, been generally followed by the American courts. It is well settled, that although the statute of limitations does not apply to any demand purely equitable, yet courts of equity, acting according to legal analogies, adopt it in cases analogous to those in which it applies at law. — Stackhouse v. Barnston, 10 Ves. 453; Cholmondely v. Clinton, 2 Mer. R. 1. But where the remedy at law a.nd in equity is concurrent, the statute of limitations applies alike to both forums. — Wood v. Wood et al. 3 Ala. 756; Johnson v. Johnson, 5 ib. 90, and cases cited.

Let us apply the analogy of the statute to the case made by the facts before us. Had the complainant’s title been legal, and-had their ancestor, or the person from whom he purchased, actually been ousted for more than twenty years, his right of entry and his action of ejectment to recover the possession would have been barred. Had an action, before the expiration of the twenty years, been instituted for an account for rents and profits, then the party could only have recovered for six years back, by analogy to the action of account. — Lewis v. Stafford, 4 Bibb, 319; Prince v. Heylin, 1 Atk. 493. In the case before us, the complainants claim to have derived their interest of one moiety of the land, and the right to a participation to the same extent in the rents and profits, as heirs of Thomas Johnson, who purchased the same of J. Lyon on the 11th day of March 1816, in the State of South Carolina.

It appears that on the Sth day of April 1813, Daniel Juzan, James Lyon and David Files entered into a written agreement, by which Juzan sold to L. and F. the land in controversy, for which it was agreed they should pay him four thousand dollars, as follows — six hundred dollars prompt payment, and five hundred dollars every six months thereafter, until the whole should be paid, and when the whole purchase money should be paid, Juzan was to make them a title to the land, he retaining that portion of it which he then had in occupation until the completion of the payment. This agreement was signed by all the parties. Two receipts of money by Juzan are endorsed upon it —one of two hundred and fifty dollars, bearing the same date with the agreement, which does not, however, state by whom such payment was made; the other, for three hundred and fifty dollars, paid on the day following — namely, the 9th April 1813, by David Files. No other payment appears to have been made under this agreement, and there is no proof which of the two, Files or Lyon, paid the two hundred and fifty dollars. The bill charges that upon the payment of the $600 by Files and Lyon, they took possession of such portion of the land as was not reserved by the agreement for the use of Juzan, and erected a grist and saw-mill on a creek upon the land. The defendant, Toulmin, answers, that as to the payments, he has “ no personal or accurate knowledge,” and requires strict proof thereof. He also states that Files took possession of a few acres of said land after the agreement was made by him and Lyon with Juzan, in 1S13, and erected a mill and a small log cabin, but that the mill was soon destroyed, and Files having lived in the cabin abopt a year, abandoned it and removed from the county of Mobile and went to reside in some other section of the State: “ That about the same time Lyon left the State, and has never since returned, nor as far as respondent knows, has he since been heard of.” The defendant further answers, that at the time Files left the place, both he and Lyon intended to abandon the contract with -Juzan for the purchase of said land, but that three years subsequent thereto, Files returned to Mobile and opened a new negotiation with Juzan for the purchase of said tract, which, it appears, embraced some 1,900 acres, and upon which Juzan had continued to reside, '-‘ and at this time said Files caused to be recorded the original agreement for the purchase of the premises refered to in complainants’ bill” — which1 original agreement, at the time of the new negotiation, the answer avers bad been forfeited on account of the non-fulfilment of its stipulations, on the part of Files and Lyon. The answer then sets out the purchase made by Files of Juzan of said land and the execution of a deed by the latter to Files, on the 22d April 181G, in consideration of the sum of $3,900, with the usual covenants of warranty, and a mortgage of the same date, upon the lands, executed by Files to Juzan to secure the payment of $2,000 by the last day of June T816, and the further sum of $1,400 by the loth day of December following. This deed and mortgage appear to have been duly acknowledged and recorded in the clerk’s office of the County Court of the county of Mobile, where the land lies. The original agreement appears to have been received for record and recorded on the 10th of January 1816, as is shown by the certificate of the clerk endorsed upon the same, but without any proof or acknowledgment of its execution. The deed from Lyon to Johnson, above alluded to, purporting to convey an undivided moiety of the land, in consideration of $1,000, and with the usual covenants of warranty, appears to have been spread upon the record in Mobile, on the 15th Sept. 1818, upon proof of its execution in the State of South Carolina, the certificate of which is informal and insufficient to admit it to record. It appears also, that Files continued in possession until 1820, when he departed this life, and administration was granted on his estate to one Austill, upon whose petition, in 1823, to the Orphans’ Court for the sale of said land by reason of a deficiency of the personal assets to pay the debts of the intestate, said land was duly ordered to be sold by said court, which order was made the 10th March 1824, and commissioners were appointed, who made the sale the first Monday in May 1825; the same being sold subject to the mortgage given by .Files to Juzan. The defendant, Toulmin, became the purchaser, at the price of $850, which added to the sum then due upon the mortgage which Toulmin has since paid, made the sum .of $3,901. In regard to this purchase, Toulmin answers that at the time he mad.® it, “he fully believed, and still believes that the said sale was legal, and that it completely divested the heirs of said David Files of all title either at law or in equity, and that at the time of said purchase he was wholly ignorant of any title or right in pr .to said premises of said Lyon, or of any other person claiming through or under him,” &c. The answer also states that immediately after said purchase, Toulmintook possession, &c. The commissioners’ deed to Toulmin bears date the 6th June 1828 — Toulmin has also proved a deed from the heirs of Juzan, to whom he ten.dered an interest in his purchase, but all of whom, except one ■of them, declined, and that one has an interest with him in the land. The bill in this case was filed on the 27th day of Feb•ruary 1S46. These are substantially the facts disclpsed^by the ■record, embracing copies of the several deeds exhibited.,and by •the consent of counsel, regarded as proved.

It will be observed, that Files and those claiming to bold ■under him have been in the exclusive perception of the rents and profits of the land since the 22d April 1816, a period of nearly thirty years: That he and they have not only been in ■receipt of the profits, but in the exclusive and uninterrupted possession of the premises during all this time, holding under a deed duly recorded, (and which registration gives notice to the world,) made to Files individually. Now had the title of Files and Lyon been legal, and had the latter, or those claiming under him, instituted his or their action of ejectment, under the decisions above refered to, a jury might have presumed, and it would have been their duty to have found an actual ouster: And consequently a recovery could not have been had.

But it is strenuously contended that the registration of the original agreement by Files, as stated in the answer to have been made at the same time the new arrangement was entered into, is an admission on his part, that he held in subservience to such agreement, and not hostile to it. We would observe, that either the certificate of the clerk or the answer is at fault in stating the time of the registration of this agreement. The first shows it to have been the 10th Jan. 1816; the latter, the 22d April following. But, considering it in the strongest light against the defendant, what does the placing the agreement on record amount to? One would naturally suppose, in the absence of all explanatory evidence, or of any circumstance conducing to a contrary conclusion, that Files considered this agreement as still subsisting, and that his entry and possession was in subordination to the title thus recognised. But it must be remembered, the fact of recording is stated in the answer, and the defendant in the same connection, and in the sentence immediately succeeding the averment, states that at the time, it was considered both by Files and Juzan that the original agreement had been forfeited by reason of the non-compliance by Files and Lyon with its stipulations. Should we not regard what the defendant says in his favor, as well as that portion of his answer which makes against him, the whole being irresponsive. to any allegation in the bill and in reference to the same agreement? . Be this as it may, we think the conclusion which the counsel for the plaintiffs in error draws from this act cannot be supported. The agreement was not such an instrument as the law required or authorised to be recorded. It was not proved or acknowledged, so as properly to be registered, if the law had been otherwise. What conceivable object could Files have had in lodging it with the clerk? To this inquiry, the record furnishes no answer. Certain it is, that 'he made a new agreement with Juzan different from that, and on his individual account, which is inconsistent with the idea of his insisting upon the original agreement as valid. Besides, if the ordering to be spread upon the record the original agreement, which the law did not recognise as an instrument for registration, and this too without acknowledgment or proof, be an admission by Files of its validity, as showing a joint interest in Lyon, the same argument, when applied to the subsequent registration ®f Files’ individual deed from Juzan, which the law admitted to record, and which was duly acknowledged, would, a fortiori, establish a contrary conclusion. When both instruments were recorded, such record would but furnish notice of inconsistent repugnant agreements, and of the abandonment of the agreement of 1813, by which Files and Lyon contracted for a joint interest, by entering into a new and different contract by which Files acquires the title exclusively in himself. We conclude, therefore, that the recording of this instrument is not sufficient to prevent the adverse claim of Files from dating contemporaneously with his possession under his deed from Jtizan, and in this view, according to the legal analogy, the statute of limitations should put an end to this controversy. — See Iler v. Routh, 3 How. (Miss.) Rep. 276.

As to the defence insisted on by the counsel for Toulmin— namely, that he is a bona fide purchaser without notice of Lyon's claim, it is not made out. If he purchased without notice, the answer is too inartificially drawn to enable us so to determine. When- a respondent would rest his purchase upon this defence, he must deny notice fully and positively though it be not charged in the bill, and if facts be charged from which such notice may beinfered, he must deny such facts. Tested by this rule, the answer in this particular is wholly insufficient.

But this aside, there is another, and to our minds a most satisfactory ground upon which the relief prayed by this bill should be denied.

The contract under which complainants claim to have derived their equity, was entered into near thirty-four years before the filing of the bill. It was executory, requiring the vendor of their ancestor, before his interest in the land could completely attach, to pay a large sum of money. There is no satisfactory evidence afforded by the record before us, that he ever paid one dollar. But conceding that he made the payment of $250, which is endorsed on the agreement, on the day it was executed, this inconsiderable sum is all that, with any plausibility, can be claimed for him. Since then, the only recognition of the contract is his sale to Johnson, in 1816. He takes no steps whatever to complete the contract, — no demand for rents and profits, but so far as the record discloses, there has been a silent, continuous acquiescence since the purchase by Files of his exclusive claim and possession. When the contract was made, in 1S13, the country was comparatively unimproved. It was before the change of flag, and it was then difficult to determine any thing respecting the prospective appreciation of the land in value. Lyon leaves the country voluntarily and never returns.’ These, and other circumstances bring this case within the principle frequently recognised by the courts of equity, as well as' by the elementary writers upon the subject, “ that long acquiescence and laches by a party out of possession, productive of much hardship and injustice to others, cannot be excused except by showing some actual impediment or hindrance caused by the fraud or concealment of the party in possession, which will appeal to the conscience of the chancellor.” — See Wagner et al. v. Baird et al. 7 How. (U. S.) Rep. 234, and cases cited. It has well been observed, that though no statute of limitations apply, yet the court of equity, acting upon a principle peculiarly its own, founded on the lapse of time and the staleness of the demand, in its desire to promote the peace and repose of society, will not interfere to grant relief when there has been gross' laches in prosecuting rights, or long acquiescence in the assertion of adverse claims. — See case abofe cited; and Juzan v. Toulmin, 9 Ala. 694, and cases cited. Here, there has not only been gross neglect in the assertion of rights, bat a total failure to comply, on the part of Lyon, with the stipulations of the contract in the payment of the money which he covenanted to pay before he could obtain á title to the land. This is of itself, in our opinion, a sufficient reason to refuse relief. In this country, where the price of lands is so fluctuating — where they so frequently change hands, there is more reason for discouraging stale and antiquated demands in respect of their purchase, and for iequiring the exercise of reasonable diligence in the prosecution and assertion of rights relating to them, than in those countries where such description of property has a more permanent and fixed value.

After the most mature deliberation we have been able to give this case, we are satisfied the decree of the chancellor, denying the relief prayed, should be affirmed-.