Kyser v. McGlinn , 207 Ala. 82 ( 1921 )

Appellee filed the bill in this cause in 1918 praying that a certain parcel of land to be sold for division in lieu of partition. It is agreed that the facts are correctly stated in the pleadings, the substance of which will be stated in the report. There was a decree adjudging complainant to be the owner of a one-third interest in the property and that the same be sold for division.

The family of Jeremiah McGlinn, complainant's father, have had no intelligence concerning him since 1903, and the presumption will be indulged that he has been dead since 1910. Smith v. Smith, 49 Ala. 156; Modern Woodmen v. Ghromley, 41 Okl. 532,139 P. 306, L.R.A. 1915B, 728, Ann. Cas. 1915C, 1063, where many of the cases on this subject are collected. Properly, then, in the absence of countervailing evidence, the trial court considered that the title of Jeremiah had descended to complainant.

Complainant has not lost his interest in the property by adverse possession. No special equity intervening to put the onus of action on him (Huey v. Brock, 92 So. 904¹), neither the statute of 10 years nor the prescriptive period of 20 begins to run against a remainderman until he has a right to sue for the possession, that is, until the determination of the estate for life. Huey v. Brock, supra, and cases there cited. Appellants' theory of their case is that when appellee's grandmother in 1880, after the death of her husband through whom by inheritance appellee claims an undivided interest in the land, mortgaged the homestead — two of her children joining in the conveyance which purported to pledge the entire fee — suffered a foreclosure in 1894, and then removed from the place with her children to Montgomery county, leaving her homestead in the exclusive possession of the purchaser, under whom by mesne conveyances appellants claim, the statute of limitations began to run against appellee's father and so continued to run against appellee who succeeded to his rights.

Under the statute of force in 1880, section 2821 of the Code of 1876, only an estate for the life of the widow or the minority of the child or children, whichever terminated last, vested in them unless the estate of the deceased owner was declared insolvent, in which event only the absolute title to the homestead vested in the widow or widow and minor children. Subject to these provisions of the then statute, the title and right of possession vested in the heirs eo instanti the death of the ancestor intestate. Shamblin v. Hall, 123 Ala. 541,26 So. 285. In the case here there was no declaration of insolvency. The exemption of this land from administration, the estate for life of the widow, under the facts in this case, continued until 1914, when the widow died. Nor did the fact that she had removed from the land work a forfeiture of her estate for life. Tartt v. Negus, 127 Ala. 301, 28 So. 713; Garland v. Bostick, 118 Ala. 209, 23 So. 698. The forfeiture considered in Banks v. Speers, 97 Ala. 560, 11 So. 841, occurred before the Act of February 28, 1889 (Laws 1889, p. 113), which declared that removal from the homestead should not operate a forfeiture to heirs or creditors so long as the widow and minor child or children should continue to reside in the state. And in Tartt v. Negus, supra, the court said:

"If the widow may without occupation lease to others, no good reason appears why her entire right may not be disposed of by sale, and we think the act was intended to allow such disposition of the right as might best suit the interest of those for whose benefit the exemption was created."

It may be conceded that, so long as Jeremiah McGlinn remained a minor, he was entitled to possession of the homestead jointly with his mother — though it may be matter of doubt whether the legislative intention was not that the mother might determine as matter of law the homestead rights of her children during their minority. But it seems to result from the statutes of that time and the cases to which we have referred that down to the death of his grandmother complainant's father had no right of possession as against his mother or her alienee, nor did complainant, and, if so, then under the rule of the cases adverted to the statute did not begin to run against complainant until 1914. But the lapse of time subsequent to that date has not sufficed to create a bar. It results that the decree of the trial court awarding complainant the relief prayed was correct.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.

¹ Post, p. 175.