Baker v. Prewitt , 64 Ala. 551 ( 1879 )

STONE, J.

There is no controversy in the present case about the facts. Under the will of Benjamin B. Jones, who died in 1830, his widow, Martha Maria Jones, became entitled in fee to an undivided third part of his real estate, when, in 1834, she intermarried with Augustine B. "Washington. There was issue of this second marriage born alive, and thus Washington became the owner of a life-estate in the lands of his wife, as tenant by curtesy. Mrs. Washington died in 1847, and Mr. Washington in 1865. The present action for the recovery of the possession of the land was brought in 1871 by the next of kin of Mrs. Washington. They claim and make title as her heirs at law; and their title, as such, appears to be undisputed, unless the proceedings and deed after noticed cut off the descent. Argument is made before us touching the manner and legality of the partition. The partition was made in 1835, and Mr. and Mrs. Washington, and those claiming under them, have enjoyed and occupied the part allotted to her, ever since, without disturbance or adversary claim, until the institution of the present suit in 1871. We will regard and treat the partition as regularly and rightfully made, without inquiring into the regularity of the proceedings by which it was effected.— White v. Hutchings, 40 Ala. 253; McArthur v. Carrie, 32 Ala. 75; Wyatt v. Scott, 33 Ala. 313; Philippi v. Philippi, 61 Ala. 41; Goodwyn v. Baldwin, 59 Ala. 127.

What|effect did the deed of Saunders, commissioner, to Mr. and Mrs. Washington, have on the title to the land in controversy ? It will be observed that, under the will of Mr. Jones, the title to the lands was vested in Mrs. Washington, and by her second marriage and issue born of it, a life-estate in Mr. Washington was carved out of it.' — Bibb v. McKinley, 9 Por. 636; Cheek v. Waldrom, 25 Ala. 152; Bishop v. Blair, 36 Ala. 80. This left the reversion in fee in Mrs. Washington ; and if her title has not been legally devested, that title vested in her heirs at law, at the termination of Mr. Washington’s estate by his death. The deed of Saunders, commissioner, was made during the coverture, and conveyed the lands to “Augustine B. Washington and his wife Martha M. Washington, . . to have and to hold the above conveyed lands, with the tenements appurtenant thereunto belonging, or in any wise appertaining, to the only use and behoof of Augustine B. Washington and Martha M., his wife aforesaid.” The recital part of the deed is, “ Whereas, at the term of the Circuit Court of Lawrence county. Alabama, in a cause therein pending in chancery, wherein John L. Townes, executor of Benjamin B. Jones, is complainant, and the heirs of said Benjamin B. Jones defendant, an interlocutory decree was made, appointing certain commissioners to divide the lands belonging to said estate; and whereas, at a subsequent term of the said court, James E. Saunders, Alexander Sale and George W. Foster, a majority of said commissioners, made their report, allotting to said Augustine B. Washington and his wife the lands hereinafter conveyed, and thereupon it was ordered and decreed that the said James E. Saunders, as commissioner, should make title to the several heirs in pursuance of said report: Now, this indenture witnesseth that, in consideration of the premises, and by virtue of the authority conferred by said decree, that the said James E. Saunders, as commissioner, hath granted, bargained, sold and conveyed,” &c. This deed bears date March r8th, 1835. It is one of the admitted facts on which this case was tried in the court below, that the division and partition of the lands made by the commissioners was reported by them to the court, and duly confirmed. If the deed of Saunders be a lawful and valid conveyance, and Mrs. Washington’s title rests on it, then Washington and. wife, by reason of their legal identity, became seized by entire-ties as one estate, and, on the death of Mrs. Washington in 1817, the entire title continued in him as survivor. On this hypothesis, Mrs. Washington left no estate in the lands, there was no inheritance from her, and the present plaintiffs have shown no title.- — Walthall v. Goree, 36 Ala. 728. The. transcript of said equity suit, under which the partition was effected, is not before us, and all we know of its contents, averments and purposes, is derived from the agreement of counsel, on which the trial was had in the court below. The following is all the agreement contains on the subject: “ In 1835, the Circuit Court of Lawrence county, Alabama, sitting as a court of equity, at the suit of John L. Townes, the executor of the will of the said B. B. Jones, and exhibited against the said heirs at law and devisees under the said will, proceeded to allot and set apart to the said Martha Maria Washington her share of said estate under said will. The commissioners appointed to do this wmre George W. Foster, Alexander Sale, and James E. Saunders. In obedience to the order of said court, said commissioners allotted and set apart to said Martha. Maria Washington the land in controversy herein-before described, and reported the same to said court, and said report was duly confirmed; and thereupon, under order of said court, said J. E. Saunders, one of said commissioners, conveyed said lands to said Augustine B. Washington and wife.”

At the time this partition took place in 1835, we had no separate Chancery Court. The Circuit Courts exercised chancery jurisdiction. Courts of equity, under our system, were and are courts of general jurisdiction, and we presume all their orders and decrees were rightly rendered, and on proper pleadings and proof, unless the contrary is affirmatively shown. The transaction we are considering is very ancient-over thirty-five years old when this süit was brought. Strong presumptions are indulged in all systems of jurisprudence, and particularly so in ours, in favor of the correctness of judicial proceedings, so old as this is. Some of the authorities say we will presume almost any thing, even the existence and loss of records, when the actual record itself is imperfect, rather than undo transactions which have rested in repose so long. — 1 Greenl. Ev. § 144; Rhodes v. Turner, 21 Ala. 210; Barnett v. Tarrence, 23 Ala. 463; Lay v. Lawson, Ib. 377; Sims v. Aughtrey, 4 Strob. Eq. 103; White v. Hutchings, 40 Ala. 253.

... . The partition made in the present case, the order for title, and the title actually made by Saunders, commissioner, to Washington and wife, were all done under the order and direction of the Chancery Court. The deed in evidence, and the agreed state of facts, prove this. The chancellor is specially charged with the duty of protecting persons not sui juris. He had the pleadings and proofs in this cause before him, and we must presume he decreed aright. He approved the allotment made to Washington and wife, - and appointed a commissioner to make them title pursuant to the allotment. There are many conceivable states of fact, on which this order would have been eminently proper. The third interest in the lands was the exclusive property of Mrs. Jones, or, rather, would become her exclusive property, when she married Mr. Washington. In this third interest her children had no right or title, vested, contingent, or otherwise. As to this property, her right of disposition was absolute. She may have made a valid antenuptial agreement, by which she and Mr. Washington were to become seized by entireties. She had the right to make such agreement, and there is nothing in the record to show she did not make it. It may have rested on valuable and ample consideration. The chancellor, before ordering the deed made to Mr. and Mrs. Washington, may have subjected her to privy examination, and thus learned it was her wish to have the deed so made. It was his duty to pursue this course, unless there was some good reason for dispensing with it; and it is our duty to presume he did his duty. We are not informed that Mrs. Washington was dissatisfied with the form in which the title was taken ; and the husband of one of her two heirs at law by her first husband, purchased the land from Mr. Washington soon after the partition ; thus proving that he at least believed Washington’s title to be good. In view of the long time since this partition was perfected, and the fact that it was all doné under the sanction and order of a court of general jurisdiction, we feel bound to presume the chancellor had authority for all he did. — Lockwood v. Nelson, 16 Ala. 294; Saunders v. Saunders, 20 Ala. 710.

The deed being made to Washington and wife during their coverture, they took by entireties; and when Mrs. Washington died, leaving her husband surviving her, the entire title remained, in him as survivor. Such was the rule of the common law, by which this case is governed. Mrs. Washington, then, had no estate to transmit, and the present plaintiffs took nothing by inheritance. There is no error in the record, and the judgment of the Circuit Court is affirmed.