Hairston v. Dobbs , 80 Ala. 589 ( 1886 )

STONE, C. J.

Among the admitted facts in this case are the following: The store-house and lot, the subject of the present suit, were part or the dower-estate of Mrs. Ann Womack, grandmother of the plaintiffs, with reversionary fee in Mrs. Hairston, her daughter, the mother of the plaintiffs in this action. Mrs. Womack sold her dower-interest-life-estate to McAlpine, who subsequently sold his interest, thus acquired, to plaintiffs. This was several years before the present suit. Mrs. Womack -was living when this action was instituted, but died before the trial came off. The Circuit Court” gave the general charge in favor .of the defendant, and there was verdict and judgment accordingly.

It is contended for the appellee that, to maintain the action of ejectment, or our statutory substitute for it, the plaintiff must not only have a right of recovery at the commencement of the suit, but that right must continue to the trial. That is certainly the rule, so far as the recovery of possession is concerned. — Scranton v. Ballard, 64 Ala. 40. Rut ejectment, or its corresponding statutory action, under our system, has a two-fold object. It recovers possession, and also rents, or mesne profits. If it fails in its primary object, by reason of the termination of the title from natural causes, or inherent imperfection, pendente lite, being sufficient when the suit was brought, it may nevertheless be continued for the recovery of mesne profits, or damages. — Doe, ex. dem. v. Holman, 19 Ala. 734; Mason v. Storrs, 34 Ala. 179; Sedg. on Dam. 120, margin; 3 Sutherland on Dam. 344; Robinson v. Campbell, 3 Wheat. 212, 223-4; England v. Slade, 4 T. R. 682; Chandler v. Jost, at present term. The plaintiffs in this case have shown a prima facie right to recover mesne profits and costs, and the minority of Percy Hairston, if there be anything in it, is not so raised as that we can consider it. — Pleasants v. Erskine, at present term.

Mrs. Hairston left a will, under which the plaintiffs in this suit, her only children, are the chief beneficiaries. The will was probated and established, and Hays, the executor, qualified and entered upon the trust. Under the provisions of the will, the fee of the property in controversy, if not diverted under a power in the will, afterwards to be considered, would and did vest in the plaintiffs, to take effect at the death of the tenant in dower, Mrs. Womack. If no change was wrought in the tenure under and by virtue of the power of sale conferred by the will, it would seem that, when McAlpine conveyed the life-estate to the plaintiffs, that life-estate and the remainder or reversion in fee became centered in them, and, the lesser estate merging in the greater, their title became an absolute fee. — Tiedman on Real Property, § 63 ; 2 Black. Com. 177.

The will of Mrs. Hairston, however, conferred on her executor “ full power to purchase and sell any property he may think necessary and proper; * * * or, to dispose of any property for the benefit of my estate.”

It is contended for appellants that this power did not authorize the executor to sell the property involved in this suit, because Mrs. Hairston’s interest in it was not a present right of enjoyment, but only an estate in reversion or remainder. The record does not inform us how she acquired her title, and therefore we can not affirm whether it was a reversion or a remainder. It is immaterial, however, whether it was the one or the other, so far as the merits of this controversy require us to consider the question. We hold that the will did authorize Hays, the executor, to sell the property, and to vest in Dobbs, the purchaser, all the estate and interest Mrs. Hairston owned at the time of her death. — Bacot v. Wetmore, 17 N. J. Eq. 250; Lippincott v. Lippincott, 19 Id. 121; Stephens v. Milnor, 24 Id. 358. The' deed from Hays, as executor, vested the legal title in the latter; but it did not confer a right of possession until the life-estate fell in, by the death of Mrs. Womack.

If any of the purchase-money was paid in any thing other than money, and if such payment did not enure properly and of right to the benefit of the Hairston estate, or in liquidation of a liability which equitably rested upon it, and which has not been otherwise accounted for in the Hays’ settlement, this will not change the title Dobbs acquired into a mere equity. If complainants have any remedy in such case, it is a right to recover such balance as unpaid purchase-money.

The defense, in one of its-phases, is rested on the averment that Dobbs, <£ and those whose possession he has, for three years next before the commencement of the suit, have had adverse possession ” of the premises sued for, and have made permanent improvements thereon. — Code of 1876, §§ 2951-4. The defense also asserts that Dobbs has held possession under color of title, and in good faith. — Code, 1876, § 2966. These defenses are incompatible, and can not both be insisted on. — Turnipseed v. Fitzpatrick, 15 Ala. 297. Defendant must be put to his election, which he will rely on. If he will not elect, the court should strike out both of said lines of defense. — McQueen v. Lampley, 74 Ala. 408.

Reversed and remanded.