McQueen v. Logan , 80 Ala. 304 ( 1885 )

STONE, C. J.

McWhorter went into possession of the lands sued for in 1856, under a deed of bargain and sale made by Mrs. McMeans through Davis her attorney in fact. Whether that deed was valid or not we need not inquire. When McWhorter purchased he went into possession, and remained in possession without interruption until 1870, claiming all the while in independent right, and exercising acts of ownership. Prom that time down to the trial in this cause, McQueen, the appellant, has had and held McWhorter’s right, and has himself been in independent possession. During all that time — twenty-eight years — the said McWhorter and McQueen, each in his turn, has claimed and held possession as of right, has asserted and performed acts of ownership, and has made valuable and permanent improvements; thus asserting all the rights of absolute ownership. The present suit was brought in December, 1884. Time has perfected a title in McQueen against all the world, unless there be a claimant armed with a paramount title, and yet so circumstanced as that he could not assert such title until an event which has happened within less than ten years before this suit was brought.

Mrs. McMeans died in 1882, and the present suit is by her children who survived her. The title which Mrs. McMeans claimed, and which it is alleged she sold and conveyed to Mc-Whorter, was conveyed to her in July, 1841, by William Payne. Plaintiffs claim that under that deed Mrs. McMeans, their mother, took only a life-estate, remainder to them as purchasers ; and that they have the legal title, dating from the death of their mother in 1882. Defendant’s answer to this claim is, that under Payne’s deed Mrs. McMeans took an absolute title; and that the words of the deed which are relied on as creating a remainder in plaintiffs, are simply words of limitation, determining the quantity of the first taker’s estate; and that plaintiffs can claim only by inheritance from their mother. If this be so, the mother’s title being barred before her death, she left nothing for them to inherit, and this suit must fail.

The real question in this case is, whether Payne’s deed, in its proper interpretation, falls within the rule in Shelley’s case —a rule of interpretation under the common law which prevailed when this deed was made, but was repealed in this State by the Code of 1852. As said in 2 Washb. Beal Prop. *268, the peculiarity of such estate is, that “ while in form the estate has two parts, a particular one for life, with a contingent remainder to the heirs of the tenant who takes the particular estate, it is constructively a single estate of inheritance in the first taker. The form of limitation of such estates is to the grantee or devisee for life, and after his death to his heirs, or the heirs of his body, either mediately or immediately, both estates being created by the same deed or devise. This rule, instead of regarding a part of the entire estate as in the ancestor, and a part in his heirs, considers the entire estate as being in him alone.”

As we have said, this rule of interpretation is not now the law of Alabama. It was changed a third of a century ago. Code of 1876, § 2183. Only deeds or wills executed before the adoption of our first Code — January 17, 1853 — are governed by it. New cases will hereafter come before us which can feel its influence. Alabama can now share with New York in the touchingly beautiful tribute paid to it by the learned and classical Kent. — 4 Com. *283. we will, therefore, abstain from any elaborate consideration of its principles.

The question is not an open one in this court. We have three well considered decisions, pronounced on titles not distinguishable in principle from Mr. Payne’s deed under which plaintiffs claim, in each of which the rule in Shelley’s case was held to apply, and that the absolute title vested in the first taker. — Lenoir v. Rainey, 15 Ala. 667; Hamner v. Smith, 22 Ala. 433; Martin v. McRee, 30 Ala. 116. See, also, Williamson v. Mason, 23 Ala. 488; Mc Vay v. Ijams, 27 Ala. 238; Mason v. Pate, 34 Ala. 379; Roberts v. Ogbourne, 37 Ala. 174.

If it be contended that under Payne’s deed, the children took conjointly with their mother, as part of the “family” the deed was intended to provide for, this can not help appellees. Such construction would clothe the children with a right to sue as soon as McWhorter took possession as purchaser, in hostile claim to their rights ; and allowing to the children the longest possible time for them to reach majority, the statute will long since have perfected a bar against them.

The Circuit Court erred in the charge given, as the plaintiffs showed no right to recover.

Reversed and remanded.