Love v. Love , 65 Ala. 554 ( 1880 )

STONE, J.

— It is shown in the present bill that appellant, defendant in the court below, took possession of the fraction ■ of land in dispute, in 1861, on the death of testatrix. The present bill was filed sixteen years afterwards — April 3d, 1877. The chancellor, in his decree, affirms that “ there was no demurrer to the bill, and no plea of the statute of limitations interposed.” In the answer of defendant is the following language : “ She admits that she went into possession of the lands devised to trustees for her use by the will of said Mary Lanier, with the permission of one of the trustees, as early as the year 1861, but expressly denies" having, at any time, taken possession of, or occupied, any of the lands devised by said Mary Lanier to said trustees for the use of complainant. That she had the uninterrupted possession of said lands, claiming them as her own, with full knowledge of complainant, for more than sixteen years.” This answer Was filed May 8th, 1877. The foregoing is, in our judgment, a sufficient plea of the statute of limitations, and we think the chancellor erred in ruling otherwise.

In addition to the averments of the bill, the testimony is full and uncontradicted, that Mrs. Mary A. E. Lanier, appellant, has been in the uninterrupted, adverse possession of the lands in controversy ever since 1861, all the time denying complainant’s right; and that complainant made repeated, unsuccessful attempts to induce Clement G. Lanier, the trustee, to move in the matter, have the boundaries re-adjusted, and herself put in possession of the land she claimed. The statute of limitations commenced running September 21st, 1865, and the bar of ten years was complete long before this suit was brought. — Code of 1876, §§ 3225, 3232, 3248, 3758.

In reaching this conclusion, it has been unnecessary to inquire, whether the parties to this suit acquired legal or equitable titles under the will of Mary Lanier. The same limitation applies as the one title, as to the other ; and when the trustee is barred, the beneficiary is barred also. — Molton v. Henderson, 62 Ala. 426; Colburn v. Broughton, 9 Ala. 351, Bryan v. Weems, 29 Ala 423; Fleming v. Gilmer, 35 Ala. 62. This bar is complete as between the present occupatits of the lands. "What will be its effect as between tenants in remainder, should there be such, we need not inquire.

The decree of the chancellor is reversed, and the bill dismissed. Let the appellee pay the costs in the court below, and in this court.