Marston v. Rowe , 39 Ala. 722 ( 1866 )

JUDGE, J.

If the equity of the bill depended upon the validity of the bond from Joshua Collins, the elder, to Andrew Dexter, and its validity could be assailed after the lapse of more than twenty years from the date of its execution and delivery, there would, perhaps, be no error in the decree of the chancellor. But the equity of the bill, though remotely connected with the bond, is wholly extraneous from the question of its validity.

In considering tbe demurrer for the want of equity, all the allegations of the bill are to be taken as true. From them it appears that the possession of the land in question by Dexter commenced, under the bond, in 1831; that there was continuous possession, control, and ownership, by himself, and those claiming under him, for a period of more than twenty years before the accrual of the title of Nancy Rowe; and that all this was with the full knowledge and acquiescence of Joshua Collins, the younger, and Christopher Collins, whose title Nancy Rowe purchased at a sheriff’s sale of the property, and of all the heirs and devisees of Joshua Collins, the elder, including Nancy Rowe herself. Under these circumstances, the ordinary statute of limitations would perfect a title in the appellant, irrespective of .the legal presumption arising from twenty years’ possession, which is more general in its operation than statutory bars. — McArthur v. Cairre’s Adm’rs, 32Ala. 75.

.In the aspect in which the case is presented, we need not discuss with particularity what constituents of an adverse possession are necessary to operate a disseizin, and sustain a prescription. It is averred in the bill, that the appellant, and those under whom he claims, “ never actually enclosed, or lived upon the landyet the allegations show what the law would regard as a possession, for the purpose of the statute of limitations at least; and it is also averred, that Nancy Rowe, and those under whom she claims, had actual notice of, and acquiesced in, the adverse possession and claim of title of Dexter and those holding under him, with full knowledge of all the circumstances. — Brown v. Cockerell, 33 Ala. 88; also, Herbert v. Hanrick, 16 Ala. 581; Farley v. Smith, at January term, 1863.

[2.] The next question is, as to the right of the appellant to relief, on account of the alleged cloud upon his title. The bill avers, that Nancy Rowe has had the conveyance of the premises from the sheriff to her, recorded; and that although she is in actual possession of but five or six acres, yet she claims the whole of the land, under the deed, and thereby casts a cloud upon appellant’s title. It is now fully established, that a court of equity has jurisdiction, to set aside deeds, and other legal instruments, which are a cloud upon tbs title to real estate, and to order tbem to be delivered up and cancelled. — Petit v. Shepherd, 5 Paige, 501. In the language of Judge Story, “If an instrument ought not to be used or enforced, it is against conscience for the party holding it 'to retain it; since he can only retain it for some sinister purpose.” — 2 Story’s Eq. § 700. See, also, Lyde v. Hunt, 11 Ala. 295; Burt v. Cassety, 12 Ala. 734; Smith v. Pearson, 24 Ala. 355; Hunt & Frowner v. Acre & Johnson, 28 Ala. 580. The registration of the deed in this case, and the claim of title under it, casts a shade upon the title of appellant, which it is his right to have removed, as it is calculated to impair the market value of his estate.

The decree of the chancellor is reversed, and the cause remanded.'