Doe ex dem. King v. Roe , 36 Ga. 199 ( 1867 )

Warner, C. J.

This is an action of ejectment brought by the lessor of the plaintiff, to recover the one-fifth of a certain tract of land, devised by George Broach to his wife during life, with remainder to his children. John Broach, one- of the testator’s children, died, leaving a widow his sole heir, with whom the lessor of the plaintiff intermarried, and who now seeks to recover the possession of the one-fifth of the premises in dispute, as one of the remainder-men under the will' of George Broach.

It appears from the record, that on the 3d day of April, 1852, Rachel Broach, as the executrix of George Broach, who had a life estate in the land under the will, sold the land at private sale, under an order from the Court of Ordinary for that purpose, to Alexander H. Broach, one of the remainder-men under the will, for the sum of two thousand dollars, conveying to the purchaser the entire fee simple estate in the land. Upon this statement of facts, the legal presumption is, that the remainder-men under the will, received from the executrix their pro rata share of the proceeds of the sale of the land in the due course of administration, and have not therefore, a very strong equitable claim now to recover their share of the land. Their legal rights, however, must be determined under the law as it existed in this State at the time the deed was made by Rachel Broach, conveying the entire estate in the land to Alexander H. Broach.

The defendant, who claims title and possession of the land under Alexander IT. Broach as a purchaser of the entire interest therein, pleads the statute of limitations as a bar to the plaintiff’s right to recover possession of the land from him. At what period of time did the statute of limitations commence to run against the remainder-men? Did the statute commence to run from the time Alexander H. Broach went into the possession of the land under his purchase from the executrix of George Broach, or did the statute commence to run only from the time of the death of Rachel Broach ? This is the question to be decided in this ease.

By the common law of force in this State at the time the deed was made by Eachel Broach, the tenant-for-life, conveying the entire estate in the land, she forfeited her life estate therein, and the remainder-men had the right to enter thereon. See Statute 11th Henry VII; Schley’s Dig., 146; 4th Comyn’s Dig., top page 392; 2d Bl. Com., 274-5; 3d Bacon’s Ab., top page 464, letter C.

Although the reason of the common law does not apply with the same force in this country as it did in England, in favor of the forfeiture of the life estate of the tenant, when he aliens the land by conveying a greater estate therein than by law he is entitled to do, thereby diverting the remainder or reversion from him who is entitled thereto, and renouncing his fidelity to his feudal lord; yet the living principles of the common law are applicable here. The testator in this case made the tenant-for-life his confidential friend, trusted to her fidelity to hold the land during her life for the remainder-men, and her act, conveying a greater estate than she had in the land, was a breach of trust, an open renunciation of her fidelity to him under whom she held and derived her title.

Had this conveyance been made by the tenant-for-life to all the remainder-men jointly, instead of to one of them to the exclusion of the others, a different question might have been presented, in regard to which we express no opinion. The conveyance of-the entire estate to one of the remainder-men to the exclusion of the others, was as much a breach of her fidelity to those excluded, as if the conveyance had been made to an entire stranger, and quite as prejudicial to their interest as such remainder-men.

The 2242 section of the Code is relied on, which declares that “Ho forfeiture shall result from a tenant-for-life selling the entire estate in, lands: the purchaser acquires only his interest.” The reply is, that the conveyance of the tenant-for-life in this case, was made before the adoption of the Code by the Legislature. The case of Parker vs. Chambliss, (12th Ga. Rep., 235,) is also relied on by the plaintiff in error. In that case, the only question involved and considered by the Court was, whether a tenant-in-dower, by committing waste, forfeited her dower and treble damages by the Statute of Gloucester. This Court held that she did not, and that was the only question made, and ilie only question decided in that case.

But it is contended, (and there are to be found decisions in the books to that effect,) that although the remainder-men might have entered immediately upon the forfeiture of the life estate, yet they were not bound to do so until the death of the tenant-for-life, and therefore the statute of limitations did not commence to run against them until her death.

After forfeiture of her life estate by the sale of the land and the abandonment of the possession thereof to the purchaser, what interest had she in the land during her life, that would prevent the entry of the remainder-men thereon at any time, or prevent the running of the statute of limitations against their right of entry during her life ? Upon principle, what has her life or death to do with the right of entry by the remainder-men after her life estate in the land is forfeited, and ceased to have any existence either in law or fact, — the more especially when they had/wS knowledge of the forfeiture. Why should not the remainder-men be required to prosecute their writ of formedon in remainder, or the modern substitute for it, the writ of ejectment, within the time required by the statute ?

In view of the facts of this case when applied to our own statute of limitations, and the construction which has been given thereto both by the Courts and the Legislature, we think that the statute did commence to run against the remainder-men from the time their right of entry on the land accrued to them. The 2637th Section of the Code declares that, “Title by prescription is the right which a possessor acquires to property by reason of the continuance of his possession for a period of time fixed by the laws.” The 2642d Section of the Code declares that, “Adverse possession of lands under written evidence of title for seven years, shall give a title by prescription.”

In Watkins vs. Woolfolk (5th Ga. Rep., 261) this Court held that the statute of limitations in this State, not only barred the right of action to recover the possession of land after the expiration of seven years, but barred the right of entry also. The record in this case shows that the defendant and Hamilton Broach, through whom the defendant claims title, were in the possession of the land for more than seven years, claiming it as their own, under written evidence of title derived from the tenant-for-life, by which she conveyed the entire estate in the land, which title was adverse to the title of the remainder-men, and hostile to their interest in the land. The record also discloses the fact that the remainder-men had knowledge of the conveyance of the entire estate in the land, by the tenant-for-life, and consequently had knowledge of their legal right to enter upon the' land at that time.

The conclusion of the majority of the Court, therefore, is that the statute of limitations commenced to run against the plaintiff in error as one of the remainder-men, from the time of the sale by Eachel Broach of the entire interest in the land, in favor of the purchaser who went into possession under that sale, and those claiming uuder him by color of paper title, and that the deeds set out in the record, furnish sufficient evidence of color of title, to enable the defendant to protect his possession under the statute of limitations; and that there was no error in the Court below in refusing to charge "the jury as requested, or in the charge as given. Therefore let the judgment of the Court below be affirmed.