SOMERYILLE, J.
It is very clear that, under the state of facts alleged in the bill, and admitted to be true by the demurrer, the interest which R. S. Wilson, the father of complainant, acquired in the lands in controversy before his death, ivas a purely equitable title. These lands were originally the property of David Chambliss, and by his last will and testament, bearing date January 23, 1860, were demised to his widow, Emeline S. Chambliss, and their infant granddaughter, Sallie David Chambliss, share and share alike. It was provided,' however, that the share of the grandchild, in the event of her death before marriage or attaining majority, should also belong [64]*64to the widow, a contingency which happened, thus vesting the legal title of the entire property in the widow. It was expressly declared in the articles of marriage settlement, executed ante-nuptially between Mrs. Chambliss and Wilson, on November lltli, 1861, that upon the happening of this event, the contingent remainder created by the grandchild’s death should “enivre and belong to said Robert S. Wilson,and thereafter said Robert S. Wilson and said Emiline S. shall hold and own the estate jointly and equally.”
This was a clear declaration of trust on the part of Mrs. Chambliss, made while she was sui juris, by which she agreed, in effect, to stand seized of the legal title to the use of her intended husband. This was an express trust, and became operative upon the death of the grandchild, in May, 1862, it being entirely immaterial that the declaration of trust was made before the legal title was vested in the trustees.—Laws of Real Prop. (Boone) § 161; Morse v. Morse, 85 N. Y 53 ; Creswell v. Jones, 68 Ala. 420 ; 1 Perry on Trusts, §§ 151, 158.
It is insisted that, this trust having been created in May, 1862, and the present bill not having been filed before January, 1883, there arises a presumption of its settlement by reason of the lapse of twenty years from the date of its accrual, upon the well settled doctrine analogous to prescription. The bill, however, alleges facts which must be construed to be a recognition of this trust as a continuing, subsisting and undischarged trust, at least until the twentieth day of January, 1866, when Mrs. Chambliss is shown to have resigned the administration of her husband’s estate and repudiated the trust by the destruction of the articles of marriage settlement.—Garrett v. Garrett, 69 Ala. 429 ; Harrison v. Heflin, 54 Ala. 552; Mc Arthur v. Carrie's Admr. 32 Ala. 75. From the date of the marriage, in 1861, up to the death of the husband, in November, 1865, the averment of the bill is that the husband and wife “held and owned” the property in controversy as “ joint property in which they were equally and jointly interested,” and that during the entire period it constituted their “homestead and ■residenceThis was a sufficient averment of actual occupancy or possession by the parties, as tenants in common of the property. The husband having entered under the provisions of the marriage contract, his possession must in equity be referable to it, and the continuance of such possession must be regarded as evidence of a recognition of the existing trust as continuing and undischarged. This, as we have said, is a full answer to any argument of presumption based on the lapse of twenty years, this period of time not commencing to run until January 20th, 1866.
Nor are we able to perceive that there is any more merit in [65]*65the defense of the statute of limitations of ten years. There are two good reasons which, in our opinion, sufficiently justify this conclusion. The-statute of limitations, in the first place, does not apply to express trusts, which are peculiarly and exclusively the subjects of equity jurisdiction, like the one under consideration, the possession of the trustee being considered as the possession of the beneficiary, and not becoming adverse until there has been an ojien disavowal of the trust, brought home to the knowledge of the beneficiary with unquestionable certainty.—McCarthy v. McCarthy, 74 Ala. 546 ; 2 Brick. Dig. p. 217, § 10 ; Angelí on Lim. § 468. It can not be maintained that an adverse possession could originate in favor of Mrs. Wilson alone, by reason of her clandestine and fraudulent destruction of her husband’s muniment of title, the marriage contract; for this would be lacking an essential element of every adverse possession, which is openness and notoriety.
A like rule prevails in the case of cotenants, or tenants in common. Not every exercise of an act of ownership amounts to a disseizin by one as against the other. The possession of one tenant in common is, in general, regarded as the possession of all, and no possession, unaccompanied by some outward and unequivocal act amounting to an ouster, will be construed into an adverse possession. An essential element of such possession is “ a notorious claim of exclusive right.”—Angell on Lim. § 429 ; Abercrombie v. Baldwin, 15 Ala. 363 ; Law Real Prop. (Boone) § 359.
The bill negatives every inference of an adverse possession of the land, certainly until the sales made by Noble as administrator of Mrs. Campbell’s (formerly Mrs. Wilson’s) estate in the year 1877, under which the several defendants are alleged to claim title.
We can not assent to the view urged by appellants’ counsel that, under the facts of this case, the relation of tenants in common could not exist between husband and wife, but that they held the land in entirety with right of survivorship. It is true that at common law', where a deed was made directly to husband and wife during coverture, they did not take by moieties, as ordinary tenants in common do, but by entireties with the right of survivorship.—Baker v. Prewitt, 64 Ala. 551; Den v. Hardenbergh, 18 Amer. Dec. 371. The reason of this rule was the legal unity of the husband and wife, a conveyance to both jointly being regarded, in legal contemplation, as a ' conveyance to but one person. — 2 Kent, 132. This rule, however, had no application to a case wdiere a conveyance was made to a man and a woman jointly, and they afterwards married. Having originally taken bynroieties, they would continue to so hold after marriage. — 4 Kent, 363; Coke’s Lift. 187 (b). The [66]*66wife, in the present case, owned an undivided half interest in the lands before her marriage with the decedent Wilson, and his right to the other half was created by an antenuptial contract — the same instrument by which a separate equitable estate was created in the wife. The effect of this contract, in our opinion, was to take the case out of the influence of the common law rule, upon the ground that the right of the parties originated before marriage, although the actual title of the husband vested afterwards, pursuant to the terms of the ante-nuptial agreement.
The same conclusion could possibly be reached in view of the policy of our present legislation, which has not only abolished all right of survivorship between joint tenants, but has abrogated the ancient rules of the common law which made the wife the mere legal shadow of her husband, by recognizing her distinct individuality in the privilege accorded her to hold and own property of all kinds in her own personal right. This principle was held by this court, in Walthall v. Goree, 36 Ala. 728, to prevail where the joint deed to husband and wife created a statutory separate estate in the wife to the extent of her undivided moiety. Whether an equitable
Free access — add to your briefcase to read the full text and ask questions with AI
SOMERYILLE, J.
It is very clear that, under the state of facts alleged in the bill, and admitted to be true by the demurrer, the interest which R. S. Wilson, the father of complainant, acquired in the lands in controversy before his death, ivas a purely equitable title. These lands were originally the property of David Chambliss, and by his last will and testament, bearing date January 23, 1860, were demised to his widow, Emeline S. Chambliss, and their infant granddaughter, Sallie David Chambliss, share and share alike. It was provided,' however, that the share of the grandchild, in the event of her death before marriage or attaining majority, should also belong [64]*64to the widow, a contingency which happened, thus vesting the legal title of the entire property in the widow. It was expressly declared in the articles of marriage settlement, executed ante-nuptially between Mrs. Chambliss and Wilson, on November lltli, 1861, that upon the happening of this event, the contingent remainder created by the grandchild’s death should “enivre and belong to said Robert S. Wilson,and thereafter said Robert S. Wilson and said Emiline S. shall hold and own the estate jointly and equally.”
This was a clear declaration of trust on the part of Mrs. Chambliss, made while she was sui juris, by which she agreed, in effect, to stand seized of the legal title to the use of her intended husband. This was an express trust, and became operative upon the death of the grandchild, in May, 1862, it being entirely immaterial that the declaration of trust was made before the legal title was vested in the trustees.—Laws of Real Prop. (Boone) § 161; Morse v. Morse, 85 N. Y 53 ; Creswell v. Jones, 68 Ala. 420 ; 1 Perry on Trusts, §§ 151, 158.
It is insisted that, this trust having been created in May, 1862, and the present bill not having been filed before January, 1883, there arises a presumption of its settlement by reason of the lapse of twenty years from the date of its accrual, upon the well settled doctrine analogous to prescription. The bill, however, alleges facts which must be construed to be a recognition of this trust as a continuing, subsisting and undischarged trust, at least until the twentieth day of January, 1866, when Mrs. Chambliss is shown to have resigned the administration of her husband’s estate and repudiated the trust by the destruction of the articles of marriage settlement.—Garrett v. Garrett, 69 Ala. 429 ; Harrison v. Heflin, 54 Ala. 552; Mc Arthur v. Carrie's Admr. 32 Ala. 75. From the date of the marriage, in 1861, up to the death of the husband, in November, 1865, the averment of the bill is that the husband and wife “held and owned” the property in controversy as “ joint property in which they were equally and jointly interested,” and that during the entire period it constituted their “homestead and ■residenceThis was a sufficient averment of actual occupancy or possession by the parties, as tenants in common of the property. The husband having entered under the provisions of the marriage contract, his possession must in equity be referable to it, and the continuance of such possession must be regarded as evidence of a recognition of the existing trust as continuing and undischarged. This, as we have said, is a full answer to any argument of presumption based on the lapse of twenty years, this period of time not commencing to run until January 20th, 1866.
Nor are we able to perceive that there is any more merit in [65]*65the defense of the statute of limitations of ten years. There are two good reasons which, in our opinion, sufficiently justify this conclusion. The-statute of limitations, in the first place, does not apply to express trusts, which are peculiarly and exclusively the subjects of equity jurisdiction, like the one under consideration, the possession of the trustee being considered as the possession of the beneficiary, and not becoming adverse until there has been an ojien disavowal of the trust, brought home to the knowledge of the beneficiary with unquestionable certainty.—McCarthy v. McCarthy, 74 Ala. 546 ; 2 Brick. Dig. p. 217, § 10 ; Angelí on Lim. § 468. It can not be maintained that an adverse possession could originate in favor of Mrs. Wilson alone, by reason of her clandestine and fraudulent destruction of her husband’s muniment of title, the marriage contract; for this would be lacking an essential element of every adverse possession, which is openness and notoriety.
A like rule prevails in the case of cotenants, or tenants in common. Not every exercise of an act of ownership amounts to a disseizin by one as against the other. The possession of one tenant in common is, in general, regarded as the possession of all, and no possession, unaccompanied by some outward and unequivocal act amounting to an ouster, will be construed into an adverse possession. An essential element of such possession is “ a notorious claim of exclusive right.”—Angell on Lim. § 429 ; Abercrombie v. Baldwin, 15 Ala. 363 ; Law Real Prop. (Boone) § 359.
The bill negatives every inference of an adverse possession of the land, certainly until the sales made by Noble as administrator of Mrs. Campbell’s (formerly Mrs. Wilson’s) estate in the year 1877, under which the several defendants are alleged to claim title.
We can not assent to the view urged by appellants’ counsel that, under the facts of this case, the relation of tenants in common could not exist between husband and wife, but that they held the land in entirety with right of survivorship. It is true that at common law', where a deed was made directly to husband and wife during coverture, they did not take by moieties, as ordinary tenants in common do, but by entireties with the right of survivorship.—Baker v. Prewitt, 64 Ala. 551; Den v. Hardenbergh, 18 Amer. Dec. 371. The reason of this rule was the legal unity of the husband and wife, a conveyance to both jointly being regarded, in legal contemplation, as a ' conveyance to but one person. — 2 Kent, 132. This rule, however, had no application to a case wdiere a conveyance was made to a man and a woman jointly, and they afterwards married. Having originally taken bynroieties, they would continue to so hold after marriage. — 4 Kent, 363; Coke’s Lift. 187 (b). The [66]*66wife, in the present case, owned an undivided half interest in the lands before her marriage with the decedent Wilson, and his right to the other half was created by an antenuptial contract — the same instrument by which a separate equitable estate was created in the wife. The effect of this contract, in our opinion, was to take the case out of the influence of the common law rule, upon the ground that the right of the parties originated before marriage, although the actual title of the husband vested afterwards, pursuant to the terms of the ante-nuptial agreement.
The same conclusion could possibly be reached in view of the policy of our present legislation, which has not only abolished all right of survivorship between joint tenants, but has abrogated the ancient rules of the common law which made the wife the mere legal shadow of her husband, by recognizing her distinct individuality in the privilege accorded her to hold and own property of all kinds in her own personal right. This principle was held by this court, in Walthall v. Goree, 36 Ala. 728, to prevail where the joint deed to husband and wife created a statutory separate estate in the wife to the extent of her undivided moiety. Whether an equitable separate estate would not come within the same rule we need not decide.—Code, 1876, § 2191; Law Real Prop. (Boone) § 366, notes 12 and 13 ; Walker’s Amer. L. (5th Ed.) 309-310 ; Wilson v. Fleming, 13 Ohio, 68.
The facts of the case, moreover, show a fraudulent concealment of the cause of action, and the aggrieved party had twelve months under the statute, within which to sue after the discovery of the facts constituting the fraud.—Porter v. Smith, 65 Ala., 169 ; Code, 1876, § 3242. Mere silence or passiveness, it is true, does not ordinarily, and in the absence of some trust relationship, constitute such fraud as to excuse the ignorance of the complaining party.—Underhill v. Mobile, etc., Ins. Co., 67 Ala. 45. Nor does fraud, strictly speaking, consist in the destruction of the evidence of a cause of action. But the fact of such destruction is a potent circumstance in proof of a fraudulent concealment of such cause of action, which is the essence of the alleged fraud, on the ground of which relief is sought. When this is coupled with the existence of a fiduciary relation between the parties, rendering disclosure both the moral and legal duty of the trustee, a court of conscience can scarcely preserve its self-respect and at the same time hesitate for one moment to grant relief.—McCarthy v. McCarthy, supra. The contract of marriage settlement was not recorded, and no one is shown to have had knowledge of its existence except the husband and wife, at least before the time of its destruction by the latter. It is alleged to have been [67]*67executed in duplicate original. When Mrs. Wilson administered on the estate of her husband, it was her duty to disclose to the complainant and other beneficiaries the true status of the estate, and the existence of this marriage settlement, which was the evidence of a valuable property-right belonging to the estate. When she resigned her trust, this paper should have been handed over to her successor in the administration. The refusal on her part to do this, accompanied with the destruction of the document, was the strongest evidence of a fraudulent concealment of the present cause of action. There is full scope for a plain application of the maxim, Omnia jpresumun-tur contra sjpoliatorem.
We think the averments of the bill sufficiently negative any laches on the part of the complainant, which might otherwise be inferred by reason of his delay in seeking relief. He was a mere infant of tender years at the time of his father’s -death, being only about thirteen years of age, and his sister was but a few years older. The two children did not reside in their father’s family or household, but in another State. Information, which seems to have been trustworthy, was conveyed to them that the estate was insolvent, and that there was no distributive share coming to them. This information seems to have been obtained either during the period of Mrs. Wilson’s administration, or a short time after her resignation, and must have been superinduced by her own fraud in failing to disclose the existence of her husband’s interest in the lands owned jointly between them. This naturally deadened the activity of further inquiry on the part of complainant, and removed every implication of a want of proper diligence. Under these circumstances, especially in view of the complainant’s non-residence, the time and manner of his discovery of the alleged fraud were stated, in our opinion, with sufficient certainty. The date of obtaining the information is stated to have been in November, 1882, and the manner and occasion of its ascertainment, a visit to Alabama, thus affording the first and only opportunity to this end which seems to have been enjoyed. The person from whom the intelligence was acquired is rather a matter of evidence than of allegation under this peculiar state of facts. The averments of the bill acquit the complainant of any negligence imputed by his failure to make an earlier visit to this State, and the information acquired seems to have been a mere accident of the visit.—James v. James, 55 Ala. 525; McCarthy v. McCarthy, supra.
The bill is not subject to the objection of multifariousness on account of the improper misjoinder of parties defendant. It can not be said that any one of those parties is brought in as “ a defendant on a record, with a large portion of which, and in [68]*68the case made by which, he has no connection whatever.” Story’s Eq. Pl. § 530; Kennedy v. Kennedy, 2 Ala. 573 ; Adams v. Jones, 68 Ala. 117. “ Where the object of the suit is single, it is no objection that the different defendants have separate interests in distinct and independent questions, provided they are all connected with, and arise out of the single object of the suit.”—Randle, Adm'r, v. Boyd, 73 Ala. 282; Fellows v. Fellows, 15 Amer. Dec. 428-29, note ; Larkins v. Biddle, 21 Ala. 252. The different titles of the several defendants all centre in one subject-matter of suit, and are subject to the same equity, created by the same instrument. Where these facts co-exist, the objection of multifariousness will not hold.—Kingsbury v. Flowers, 65 Ala. 479; County of Dallas v. Timberlake, 54 Ala. 403 ; Johnston v. Smith's Adm'r, 70 Ala. 108.
The other objections are, in our opinion, without merit, and the motion to dismiss the bill was properly overruled, as were also the several demurrers of the defendants.
Decree affirmed.