Montgomery v. Gordon

51 Ala. 377

Opinion

BBICKELL, J.

Under the statutes prior to the Code, it was repeatedly adjudged by this court, that commissioners, appointed by the orphans’ court, to make division of the estate of a decedent between his heirs and distributees, had no authority to order or require one distributee to pay another a sum of money to equalize the distribution; that their only power was to make an equal division of the estate, if it was susceptible of it, and, if not, so to report, that a sale for division and distribution could be ordered. A confirmation of the division or partition by the orphans’ court, when it directed the payment of money by one distributee to another, did not impart to it validity. Teat v. Lee, 8 Porter, 507; Jones v. Jemison, 4 Ala. 633; Duval v. Chaudron, 10 Ala. 391; Allen v. Raney, 19 Ala. 68. The Code has not, in this respect, enlarged the authority of the commissioners, or the jurisdiction of the court of probate, but substantially reenacts the previous statutes. The claim of the appellee to a recovery, if it rested alone on the award of the commissioners, could not be sustained. But it fully appears that the partition made by the commissioners was adopted by the parties, recognized and acted on as valid, for such a length of time that, to permit any one of them now to repudiate it, would be a fraud on the others. For more than six years before this suit was commenced, the appellant and the appellee had each possession of the lands awarded them. Six years after the allotment, they appear in the court of probate, and consent to its confirmation. If tbe allotment is not binding and conclusive, and if tbe appellant did not intend that it should be, be bas now, and has bad since tbe 1st January, 1866, a larger share of tbe estate of bis ancestor than be is entitled to bold and enjoy. He has deprived the appellee of the possession and enjoyment of that full share of tbe estate, to which tbe law gave her a right. He bas never taken any legal measure to vacate tbe partition, and obtain one conforming to the law, as be now asserts it to be. We think he has estopped himself from denying his liability to pay the appellee the sum awarded her by the commissioners. In considering the precise question here presented, this court, in Allen v. Raney, supra, said: “ If the parties adopted the division, with its terms, and acted on it, or made distribution upon the same terms among themselves, they were bound by it.”

2. The statute of limitations of six years was pleaded as a bar to the suit. The replication to this plea does not appear in the record; but we must presume, to support the judgment, that any replication which the facts would warrant was filed. The cause of action does not arise from the report of the commissioners to the court of probate, nor from the confirmation of the report by the court. It arises from the adoption, the ratification by the parties, of the division. The report may never have been made, or, if made, may never have been confirmed by the court; yet, if the parties adopted aud acted upon it, as a division of the estate, it becomes obligatory on them, and the right of action to recover the sum awarded to be paid by the one to the other commences from this adoption. The division was adopted and acted upon by the appellant, on the first day of January, 1866, when he took possession of the lands allotted to him. Having taken possession, he was estopped from disputing the validity of the partition. The appellee then obtained possession of the lands allotted to her, but she was in infancy, and so continued until November, 1868. Arriving at full age, she remained in possession to the trial of this cause in the court below. Thereby she adopted, ratified, and acted upon the division, and became estopped from questioning its validity. Mutuality is an essential ingredient of an estoppel. The appellee, during her minority, was incapable of being affected by an estoppel en pais, of which fraud is not an element, and could not claim the benefit of the estoppel against the appellant. On arriving at majority, and adopting and acting upon the division, she became affected by the estoppel, of which the appellant could claim the benefit, if she subsequently impeached the division. From that time, her cause of action arises. It did not exist previously, because she could not previously claim the benefit of the estoppel against the appellant. Six years did not elapse from this time before the commencement of this suit, and, of consequence, the appellee’s action was not barred.

The judgment of the circuit court is affirmed.