Norwood v. Kirby's Adm'r , 70 Ala. 397 ( 1881 )

SOMERVILLE, J.

The bill in this case is fatally defective in several particulars, and was properly dismissed by the chancellor.

The appellants, Poe and McAnally, were clearly estopped from denying the title of Brown, who sued for the possession of the lands in dispute in 1ns trust capacity, as administrator of the estate of Joshua Kirby, deceased. They had entered upon these lands, originally, as the tenants of the estate, under a lease from Mrs. Lavinia Kirby, who, as the predecessor of Brown, was then acting as administratrix of her husband’s estate, recognizing the lands as the property of the decedent, and dealing with them as such. In such cases, the title of the demised premises can not be put in dispute. The wrongful possession of the tenants holding over, and the privity of their relationship, were established by the actions of unlawful detainer, brought against them by the appellee. These issues could not be again tried, under the color of a chancery proceeding. Hamilton v. Adams, 15 Ala. 596. The law is settled, that where possession is obtained by a tenant, in recognition of 'the landlord’s title, he is precluded from setting up an adverse title, with the view of defeating that of the landlord. If a tenant, after taking possession on the faith of his lease, acquires an outstanding title, adverse to his landlord, he will be required to first surrender possession, before he can be permitted to assert or claim under it.—Tyler on Eject. 550; Jackson v. Harsen, 17 Amer. Dec. 517; Blake v. Howe, 15 Ib. 681; Russell v. Erwin’s Adm’r, 38 Ala. 44; 2 Brick. Dig. p. 200, §§ 103-4.

It is no answer to this view, that Mrs. Kirby asserted a personal claim to the lands, upon her alleged discovery that the title of the estate was defective, and continued to lease them to the same tenants as her private property. This she could not do, without a breach of her fiduciary duties, too clearly unwarrantable to be countenanced for a moment by a court of equity. If the tenants in possession are precluded from setting up, as against the estate, any adverse title acquired from a stranger, a forliori would the rule apply to a title derived from one acting as administratrix, in a trust capacity, and herself attempting to create an adverse title by the assertion of an individual claim.

Eor these reasons, and for others not necessary to be considered, the bill was entirely devoid of equity, and was properly dismissed.

Affirmed.