Sisson v. Swift , 243 Ala. 289 ( 1942 )

The application for rehearing presents a question not urged or considered on the original hearing and further re-argument of the matter of estoppel in a different light from that previously taken up.

The warranty deed from Henry and Margaret A. Sisson of date of July 16, 1882, to their son William H. Sisson was a conveyance of a large tract of land, the specific exception of 300 acres for the father being embraced therein. It should be remarked further that this exception was of the homestead of the grantors and that part lay in fractional Sections 7 and 8 in T. 8 South of Range 3 East, Baldwin County, and was adjacent to the two Spanish Grants of Cataline Plock and Thomas Powell. This deed was duly recorded on July 25, 1882, in the records of the Probate Office of Baldwin County, Alabama.

On May 1st, 1883, William H. Sisson and wife by a quitclaim deed conveyed their interests in said lands to Chas. Tanner and John Millen, containing the exception of 300 acres of land, which is incorrectly described as 300 acres lying in Section 7 and not extending, as it does, into Section 8. The habendum and tenendum clauses therein were like unto that employed in the conveyance. Garrow et al. v. Toxey, 188 Ala. 572, 66 So. 443; Garrow v. Toxey, 171 Ala. 644, 54 So. 556. The Reporter will set out the foregoing conveyances from Henry to William H. Sisson and from the latter to Tanner and Millen.

It is now urged that the clauses indicated brought this case (as to estoppel against William H. Sisson to acquire the title by inheritance from his father in 1892) within the rule of the Garrow cases.

In Garrow et al. v. Toxey, 188 Ala. 572, 66 So. 443, 445, Mr. Justice De Graffenried recognized the right which has prevailed to this date of acquiring lands by adverse possession by one so estopped, notwithstanding the fact that the unusual provisions contained in the deed being considered raised an estoppel under the facts of that case. His words are as follows:

"In this case the defendants were in such a position that, to defeat the plaintiff's right of recovery, it was necessary for them to show that they or those through whom they claimed the land had, at some period, been in the adverse possession of the lands, claiming them as their own, for a period of ten years.

"It is needless for us to here define adverse possession, or to say when a party has offered sufficient evidence of possession with accompanying acts of ownership, for ten consecutive years, so as to place that question within the province of a jury as an issue of fact for their determination * * *."

This holding was in accord with the expressions by Mr. Justice Sayre in Garrow et al. v. Toxey, 171 Ala. 644,54 So. 556, 558, as follows: "* * * We think we must take the conveyance as a mere release or quitclaim. Nor does it appear that Gazzam was in possession at the time; and defendants took these points. Where one person makes a quitclaim to another, and afterwards obtains a patent for the same lands, the title of the patent does not inure to the grantee in the quitclaim, as it would in the case of a conveyance with warranty of title. Tillotson v. [Doe ex dem.] Kennedy, 5 Ala. 407, [39 Am.Dec. 330]. On the case as it is made to appear to us as of the time when the quitclaim was received in evidence, there was error in overruling the objections taken to it. The grantor by release or quitclaim is not responsible for the goodness of his title, and such a conveyance does not operate to pass or bind an interest not then in existence. The bargain between the parties proceeds upon this view, and the consideration is regulated in conformity with it. Val Rensselaer v. Kearney, 11 How. 297, 322, 13 L. Ed. 703. A quitclaim does, however, convey the interest or estate of which the grantor is seised and possessed at the time. * * *"

The opinion concludes with the observation that: "* * * Any possession held by Garrow subsequent to 1813 and prior to the patents under which the parties claimed was of no consequence as affecting that title. If possession in Garrow subsequent to the patents had been otherwise shown, no doubt his affidavit would have been received as a contemporary declaration illustrative of the character and intent, as of the res gestae, of such possession. But no such possession was shown. * * *"

Thus these opinions recognize the right to acquire lands by adverse possession as against any estoppel that may be raised. Doolittle v. Robertson, 109 Ala. 412, 19 So. 851; Henderson v. Noland, 238 Ala. 213, 189 So. 732, 123 A.L.R. 483.

On the original hearing the judgment was rested and the result announced on the evidence tending to show adverse possession on the part of the respondents as against the claims of appellees. We may observe further of the Garrow cases that the facts on which the decisions rested were that the equity in the land conveyed was thereafter supported by the legal title which remained in the United States and that a short while after making the quitclaim deed with the unusual clauses indicated, the patent was duly issued to such grantor. Hence the estoppel against him was effective and in support of his deed and against his claim as patentee for the short while indicated.

In the original opinion we adverted to the rules as to estoppel, that each case rests upon its own particular facts and circumstances, and that an estoppel can never be invoked to accomplish a result contrary to the intent of the parties or by such invocation work an injustice between the parties as to the subject-matter. Adler v. Pin, 80 Ala. 351; 31 Corpus Juris Sec. p. 203, § 21 et seq.

Under the facts as we find them in this record though there is conflict in the evidence, we will not do the injustice of enforcing the estoppel against William H. Sisson (the son) as to the father's land and homestead (Henry Sisson's homestead), which the latter held until his death in August, 1892, and thereafter by Martha Sisson, the wife of Henry, and the mother of William H., to the date of her death in 1917, and by the two sons William H. and Wesley Sisson to the date of their division of the common properties in 1915, and their respective adverse holdings to the date of this decree.

In the original opinion on the question of notice we adverted to the fact that William H. Sisson testified when he was contemplating the sale to Tanner Millen of the large tract of land he owned, that Chas. Tanner rode around the 300-acre exception of land then under fence and cultivation. The opinion and result announced were not rested entirely on this piece of evidence, which was material and relevant, but such was persuasive of notice when taken into consideration with all other evidence of the nature and extent of the exception and of its adverse holding at the time by Henry Sisson, father of contemplated grantor.

It is now insisted that this evidence was incompetent as being a transaction with one of the deceased grantees, Charles Tanner, and whose estate, it is insisted, is interested in the result of the suit and proceeding. Code 1940, Tit. 7, § 433; Dent v. Foy, 210 Ala. 475, 98 So. 390.

The answer to depositions by a nonresident covered every phase of and questions presented in the case. The abstract shows deeds by the heirs and next of kin of Chas. Tanner. From this the inference is or may be taken that said grantee Chas. Tanner was dead at the time of the giving of the testimony by William H. Sisson. The record shows conveyances thereafter by John Millen, one of the grantees named in the aforementioned deed.

When the whole evidence is considered, we cannot find that the estate of said Tanner was interested in the result of this suit to quiet title or remove a cloud from the lands to be determined more than 40 years after the deed to Tanner Millen and after the quitclaim deed given by the heirs at law and next of kin of Chas. Tanner to the said lands of date of September 30, 1902.

It is unnecessary that we further declare as to the competency of the piece of evidence in question or of the nature of objection or exception taken, if the same was duly objected to and exception noted. It may be observed for convenient reference that the rule that obtains, under the issues of fact presented by the pleading, is that of force atthe time of the trial in this jurisdiction as to competency. 31 Corpus Juris, Sec., § 15, p. 158 et seq.; Myrick v. Myrick,230 Ala. 282, 160 So. 895. The manner of making objection andreserving and noting an exception to evidence in equity casesis that which obtains when the evidence is given. See Code 1940, Tit. 7 Appendix, Equity Rule 55, Code 1923, § 6577, Old Rule 65; Elyton Land Co. v. Denny, 108 Ala. 553, 18 So. 561; Michie's Code 1928, § 158 [65] p. 1947; Acts 1923, p. 631, § 1, Code 1940, Tit. 12, § 115; Thompson v. Heiter, 238 Ala. 549, 192 So. 282; Des Portes v. Hall, 238 Ala. 641, 192 So. 899; Code 1923, § 6565 is omitted from the Code of 1940.

We repeat, however, that in the original opinion, we rested the decision and judgment on the fact of adverse possession of the 300 acres of land in question by the respective respondents to the time of the trial, and that they had the right to maintain such adverse possession against the appellees and their predecessors in title.

It follows from this that the result and judgment rendered was without error and the application for rehearing is overruled.

Application for rehearing overruled and opinion extended.

All the Justices concur.