Jenkins v. Woodward Iron Co.

SOMERVILLE, J. —

The bill of complaint shows that complainants’ mother owned a remainder interest in the land in suit, to become vested in her or her heirs upon the death of her father, the life tenant. The said mother died in 1881, leaving a husband, who still survives. Her said father died in 1890. The bill is filed by complainants, as heirs of their mother, against respondent, who is in possession of the land as grantee by mesne conveyances of a fee-simple estate from their grandfather, the said life tenant; and its purpose is to have the title and interest of complainants declared as against the claim of respondent.

(1, 2) Complainants base the equity of their bill upon the theory that, upon the death of their mother in 1881, their father acquired a statutory estate in the nature of curtesy, which left to complainants only an estate in remainder ; and hence, pending this life estate in their father, they have been and still are unable to test their title by an action at law to recover possession of the land. We think this view of the case is correct, and must *373 result iu affirming the equity of the bill, and also in refuting the validity of that ground of the demurrer based on the supposed operation of the statute of limitations of 10 years. — Dake v. Sewell, 145 Ala. 581 , 39 South. 819 ; Woodstock Iron Co. v. Fullenwider, 87 Ala. 584 , 6 South. 197 , 13 Am. St. Rep. 73 ; Lansden v. Bone, 90 Ala. 446 , 8 South. 65 ; Worthington v. Miller, 134 Ala. 420 , 32 South. 748 .

(3) The case of complainants rests, of course, on their mother’s acquisition of title from her father, and this depends upon the sufficiency of the conveyance she received from him. Its sufficiency is attacked by several of the grounds of demurrer, which we must hold are without merit.

(1) It is true the deed in question conveys the land by numbers merely, without designating either county or state. But the bill of complaint shows that the grantee at that time owned and was in possession of lands in Jefferson county, Ala., described by these identical numbers; and, it not appearing that he then owned other lands described by these numbers, the identification is sufficient, and the conveyance will be pronounced valid. — Chambers v. Ringstaff, 69 Ala. 140 . And this results without the aid of judicial notice of the location of land of corresponding numbers in the government survey of the state.

[4] (2) The conveyance is in the usual form of bargain and sale, with habendum, and it stipulates: “That said deed is not to become operative until the death of the grantors, but the grantors are to retain the possession * * * until their death, at which time the parties or their heirs are to take the * * * land into their possession and control.”

This was clearly a deed of present conveyance to the grantee, with reservation of possession only in the gran *374 tors during their lives. — Phillips v. Phillips, 186 Ala. 545 , 65 South. 49 .

It results that the demurrer was not well grounded, and should have been overruled.

(5) We presume that the learned chancellor may have ruled against the equity of the bill upon the theory that for want of seisin in the wife during coverture, her estate being in remainder, the husband’s marital estate never attached, and hence that complainants were invested with the full legal title of their mother upon her death, with the right to sue at law upon the termination of their grandfather’s life estate. Prior to our statute (Code 1852, § 1990; Code 1907, § 3765), the husband’s interest being the common-law estate by the curtesy, the wife’s seisin in fact or in law during the coverture was a necessary incident to that estate. — Bank v. Davis, 31 Ala. 631 ; Baker v. Flournoy, 58 Ala. 650 ; Carrington v. Richardson, 79 Ala. 101 .

(6) By the Code of 1852 (section 1990) it was provided that: “If a married woman having a separate estate, die intestate, leaving a husband living, he is entitled to one-half of the personalty. * * * absolutely, and to the use of the realty during his life.”

Her separate estate was defined as: “All property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner.” — Code 1852, § 1982.

These provisions have remained unchanged, and, when construed in connection with her power to dispose of her estate by will, it seems clear that, as to the wife’s separate estate, the common-law estate by the curtesy was abolished, and that for it was established a statutory estate in the nature of curtesy, freed from the conditions of seisin and issue born alive, upon which the com *375 mon-law estate depended. The term “separate estate” manifestly includes all transmissible property, whether in possession or not (Marshall v. Crow's Adm’r, 29 Ala. 278 ; Thompson v. Thompson, 107 Ala. 163, 166 , 18 South. 247 ; Dake v. Sewell, 145 Ala. 581 , 39 South. 819 ) ; and an estate in remainder is of course an hereditary estate.

A well-reasoned case giving this effect to statutes substantially like ours will be found in Snyder v. Jones, 99 Md. 693 , 59 Atl. 118 . Said the court, per McSherry, C. J.: “A vested fee-simple estate in remainder, the title to which she [the wife] held, was real property ‘belonging’ to her, notwithstanding an intervening life tenancy deferred her actual possession of it. It was an estate which she could devise, and which, if she died intestate, would descend to her heirs at law. But, further than that, the statute declared without qualification that if a married woman, to whom real property ‘belonged,’ died intestate, her husband should have a life estate in that property wthich thus belonged to her. There was no provision that she should be seised in deed, or that she should have a life estate in that property which thus belonged to her. There was no provision that she should be seised in deed, or that she should have had issue born alive during coverture, to entitle the husband to a life estate. The property, real and personal, belonging to a woman at the time of her marriage, is a universal proposition or declaration, and must, according to well-understood methods of reasoning, be taken in its widest sense, and therefore must be held to exclude every qualification, restriction, or exception. It ® * * includes a vested remainder in fee, as well as a fee-simple estate in possession, because the former is just as certainly property belonging to a married woman as is the latter, though the one differs from the other only in the *376 single circumstance, not of ownership, but of possession.”

The decree of the chancery court will be reversed, and a decree will be here rendered, overruling the demurrer to the bill.

Reversed and rendered.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.