Nimmo v. Stewart , 21 Ala. 682 ( 1852 )

DABGAN, C. J.

— -I fully agree with the Chancellor, that the bill asserts a present interest in the slaves, and is not one to protect a future interest or a remainder, after the death of Mrs. Nimmo, the mother of the complainant. But I think the Chancellor was mistaken in holding, that the will gave to Mrs. Nimmo an exclusive life-estate in the slaves, with a remainder after her death to her children. The general rule is, that, if a devise be to one and his children, and he has children at the date of the will and the death of the testator, the parent and children living at the testator’s death take jointly under the will. This was resolved in Wilde’s case, 3 Coke, part 6, 17, and has been steadily adhered to ever since. See the cases collected in 2 Jarman on Wills, 307 to 317. The decisions of this court recognize the same rule. McCroan, Trustee v. Pope et al., 17 Ala. 612 ; Fellows, Wadsworth & Co. v. Tann, 9 Ala. 1003; also, 1 Sumner, 359; 15 Pick. 104.

It is true, the intention is to govern; but when the devise is general, to one and to his children, and there is nothing in the will from which it can be inferred that the interest of the children is to be postponed until after the death of the parent, they must all take jointly upon the death of the testator ; for no other intent can be inferred from "a bequest to one and his children, when there are children both at the date of the will and at the death of the testator. Nor should I think the case would be altered, if there were no children at the date, of the will, but some had been born afterwards and were in life at the testator’s death. 2 Jarman on Wills, 311; 2 Atk. 220. But in this case, there were children both at the date of the will and the death of the testator, and there is nothing contained in the will from which we can infer that the testator intended to postpone the interest of the children until the death of their mother. They, therefore, all took an immediate and a joint interest.

But, notwithstanding this is the character of their interest, I am very clearly of the opinion, that the bill was properly dismissed; for it is shown, not only by the answer and proof, but by the bill itself, that Thomas • Stewart had been in the quiet and undisturbed possession of the slaves for about twelve years before this bill was filed; that is, he acquired Charlotte and her then only child in the year 1834, and has retained her ever since, and her other children were born in his possession. This delay, in my opinion, is fatal to the bill; for there has been no legal impediment .to its being filed at any time since the defendant Stewart acquired the possession of the slaves.

It may be, that our statute of limitations does not, in express words, embrace bills in equity, or mere equitable demands ; yet it is settled beyond controversy, that courts of equity, acting upon the analogy of the statute, and in imitation of courts of law, will refuse relief if tbe legal title would, have been barred at law. Thus, a mortgagor cannot redeem after twenty years adverse possession by the mortgagee, unless something has been done during the time that will waive the bar, or prevent its application. Kane v. Bloodgood, 7 Johns. 90; Hovenden v. Lord Annesley, 2 Sch. & Lef. 607; Johnson v. Johnson, 5 Ala. 90, and cases cited in the opinion.

There are exceptions to this rule, or rather supposed exceptions ; I mean in cases of continuing trusts, Avhich are not affected by the statute, or by length of time, so long as they are admitted or acted upon as trusts. But even those must fall within the influence of the statute, if the trust has been denied and repudiated, and the cestui que trust permits his trustee to retain possession, after he has acquired a knowledge of the disavowal of the trust, a sufficient time to create a bar to his title had it been a legal one. Kane v. Bloodgood, supra.

But, in the case before us, the relation of trustee and cestui que trust never existed between the defendant Stewart and the complainant. Stewart acquired the slaves and held them as his own, and the title of the complainant was a mere equitable one, the legal title being in the trustees appointed by the will of the testator; and to hold that the statute did not apply to the equitable title, would be to exempt all equitable titles from its influence. Six years adverse possession would have barred the legal title, and the same rule must be applied when a complainant comes into a court of equity upon an equitable title, disconnected from a trust, as between him and the defendant. I, therefore, think, that, though the complainant took an immediate interest under the will of his grandfather, still he is barred by lapse of time of his remedy, and that the bill was properly dismissed.

It is, however, contended, that the defendant Stewart did not insist upon the statute of limitations in his answer, and that his executor could not set it up in his answer to the bill of revivor; because he was not required to answer the original bill, which had been answered by his testator, and could only put in issue matter going to the propriety of reviving the suit. To this it is answered, that no exception was taken to the answer of the executor, and for this reason, every thing was in issue presented as a bar to relief by bis answer. But I think it unnecessary to examine this question of practice, for the answer of Thomas Stewart contains a general demurrer to the bill, and that upon its face shows that the remedy is barred; and the benefit can in such a case be as well invoked by a demurrer as by a plea. Story’s Equity Pl. § 503; Humbert et al. v. The Sector &c. of the Trinity Church, 7 Paige, 195; Dunlap v. Gibbs, 4 Yerger, 94; Tyson v. Poole, 3 Younge & Coll. 266; Hoare v. Peck, 6 Simons, 51. The rule as now settled is, that if the objection appears upon the bill itself, it may be taken advantage of by demurrer ; but if the bill does not show that the remedy is barred by lapse of time, then the defendant must insist upon it either in his answer or by plea. The bill before us was filed in the year 1846, and it shows that the defendant came into possession of the slaves by a transfer to him in the year 1835, and has retained possession ever since. It therefore shows, that lapse of time is a bar to the relief sought.

Let the decree be affirmed.