
    Kennedy v. Rainey, et al.
    
    
      Ejectment.
    
    (Decided Nov. 22, 1905,
    39 So. Rep. 813.)
    1. Partition; Effect upon Title. — Partition operates upon the possession, and not upon the -title, serving merely t'o sever the unity of possession existing before partition.
    2. Adverse Possession; Character; Necessity of Hostile Possession —It appearing that prior to the setting off of the land to the defendant by partition, the plaintiff had title to the same, the fact that thirty-five years had elapsed between the partition and the bringing of the action of ’ejectment, during which time defendant had remained in possession, raised no presumption of title in the defendant, it appearing further that the original acquisition as well as the continued possession of the defendant had been in subordination to plaintiff’s title in fee.
    Appeal from Selma City Court.
    Heard before Hon. J. W. Mabry.
    This was an action by Mary J. Kennedy to recover of Mattie.C. Rainey a certain tract of land described in the complaint. The facts upon which the opinion is rested sufficiently appear therein. It appears that this land was partitioned on the petition of Lucy S. Hatcher and Julia Hatcher by commissioners and that partition was duly made under an agreement to divide the lands equally between Lucy S. Hatcher and Julia, Hatcher now Mary Julia Kennedy. Lucy Hatcher appears from the transcript to have been the wife of the-owner of the laud, and Julia Hatcher a,n heir of the owner of said land. Lucy Hatcher conveyed, her interest in said' land to Sarah A. Rainey by deed of date May 20th, 18S7. The will of John Hatcher, the owner of the land directed that after the payment of his debts, that the remainder of the estate be equally divided into two- parts, one to Lucy S. Hatcher for and during the term of her natural life and after death, the same- to be equally divided among the children of the son James W. Hatcher share and share alike. The other half or equal part of my estate after being divided as aforesaid, I bequeath unto my beloved son, James W. Hatcher, unconditionally. James W. Hatcher married plaintiff, and they had two children both of whom died in early childhood and James W. Hatcher died in 1861. Mrs. Lucy Hatcher died in the year 1894.
    Petits, Jeffries and Partridge, for appellants.
    The widow of John Hatcher-had a life-estate in one-half of his land with the remainder to the children of James W. Hatcher living at the death of said widow. This is a vested remainder and ivas in the infant child of Hatcher who died subsequently to him and passed to the plaintiff here on the death of the child subsequent to that of his father. — Donovan v. Pitcher, 53 Ala. 411; Gimlrat v. Western By. Go., 96.Ala. 162; ñma-m v. Young, 109 Ala. 528. This gives plaintiff at the time of partition a possessory right to two-thirds of the land in fee simple and a title to one-third interest in the land after a termination of the life estate, but as to this one-third interest, plaintiff had no possessory interest until the death of the life tenant. The widow- from whom defendant deraigned title, having dissented from the will of her husband, was holding solely under her right of quarantine under section 1359 of the Code of 1852 and could not refer her holding to any other right. — Pop v. Welboru, 112 Ala. 160; Bhenrood v. Baker, 24 Am. St, Rep. 399 : 
      Hannon v. Hounihan, 12 S. E. 157; Robertson v. Allison, 79 Ala. 596; Null v. Iloioell, 20 S. W. 24; Johnson r. Oldhamv, 126 Ala. 311; Inge v. Murphy, 14 Ala. 289; Shelton v. Carroll, 16 Ala. 148; McLeod v. Bishop, 11Ó Ala. 640. This holding cannot become hostile to the remainderman and widow while in possession under quarantine cannot purchase an outstanding title without taking such title as trustee for the remainderman.— Johnv. John, 93 Ala. 243; Clayton v. Clayton, 12 S. IV. 312; Thomas v. Black, 20 S. W. 657; Scott v. Proctor, 13 S. W. 790; Richards v. RichardsA 42 N. W. 954.
    If she had not dissented from the will, her possession would have been referrable to the life estate under the will and could not have been hostile to the remainderman. —Pickett v. Pope, 74 Ala. 122; Pendlcy v. Madison, 82 Ala. 484; Qindrat v. Western Ry. Co., supra. The remainderman had no possessory interest in the life estate and such interest could not be involved in a partition proceeding. — Keeley v. Deegan, 111 Ala. 157; Wood o. Sugg, 91 N. C. 92; 49 Am. Rep. 639. ITe who owns two different interests in the same lands, one a possessory interest making him a tenant in common with the life tenant ■ of a one-third undivided interest, and the other the remainder in fee after determination of that life estate, who joins in a partition proceeding with the owner of the life estate, such division will be referred to< the present possessory interest and not to .the remainder, for the reason that partition must be of property as to which there is a present right of possession. It does not create title nor settle it. It only operates to sever the respective estates the tenants in common have and to attach those estates to the. several allotments of the land instead of to the whole. — Christy v. Spring Valley Water Work*. 8 Pac. 849; Morenhout v. Higuera, 32 Cal. 289; Wade v. Bar ay, 50 Cal. 376; Cave v. Ilolford, 3 Ves. Jr. 658; Freeman on Partition, Section 396, p. 507; Pacific Bank v. Hanma, 90 Fed. 79; Love v. Blairn, 48 L. R. A. 259; Ficen,or v. Driskilc, 97 Ind. 27; Atkinson v. Brady, 21 S. W. 480; Webb A Nea-se, 49 S. W. 1081; 21 Am. &Eng. Ency. of Law, (2d Ed.) yTabler v. Wiseman, 2 Ohio St. 210; Coundy v. Northampton, 7 Barr 238; McClure v. McClure, 2 Harris 137; Carter v. Bay, 59 Ohio State, 96; Freeman v. Allen, 17 Ohio Ht. 529; Fillsbury v. Dugan, 9 Ohio 111; McBain v. McBain, 15 Ohio Bt. 337; Bank t\ Wallace, 4 Ohio St. 168. This is a settle ddoctrine in Massachusetts and Pennsylvania. The law is settled that even in an adversary or judicial partition the title remains unchanged, and that it effectuates only the severance of the unity of possession. — Fanner v. Alexander, 62 S. W. 691; 17 Am. & Eng. Encv. of Latv, p. 665 and note; Freeman on Partition, Section 411, p. 536. The partition in this case Avas a voluntary one and parte. The proceedings before the probate court for partition is■ coram non judice and void, when the petition does not contain the jurisdictional facts. — McCockle v. Rhea, 67 Ala. 603; Johnson v. Ray, 75 Ala. 213.
    The entire proceedings in probate court was a nullity. —Terrell v. Cunningham, 70 Ala, 100; Ward v. Corbett. 72 Ala. 438; Wolf v. boob, 98 Ala. 426. The decree of the píchate court, even Avhen the court has jurisdiction does not settle the equities existing behA’em the parties but only declares the same OAvnership in severalty as before existed in unity. — Austin v. Beau, 101 Ala. 133. The deed from Mrs. l-Iatclier to Mrs. Rainey had no effect upon the plaintiff’s title unless actual knoAAdedge of the same was brought to her before' the evidence in this case discloses that she knew anything about it. The burden is on the defendant to show affirmative acts of hostility.: — Johnson r. Oldham, 126 Ala, 311; Foy v. Wellborn, 112 Ala. 164. The record of a deed is not notice to those avIio already have title. — 20 Am. & Eng. Ency. of Law, 390 and note; Cimon v. Darás, 36 Ala. 592. The spreading of a deed on record made by one tenant in common to a third party is never notice to the co-tenant. — Holley v. Hairley, 94 Am. Dec. 355. The plaintiff is not estopped by the partition proceedings.
    J. R. Satterfield and Mallory & Mallory, for appellee.
    After the lapse of thirty-five years from the filing of the petition for partition to the bringing of this suit, a conveyance from plaintiff to defendant’s grantor.Avill be presumed.' — Grecnleaf’s Evidence, ■ Section 46; Normant v. Eureka (Jo., 98 Ala. 187 and cases cited; Lontj v. Parmer, 81 Ala. 384; Clemmons v. Cox, 116 Ala. 572. It must be that defendant’s grantor had more than a dower interest, for the- widow is neither a joint tenant, a tenant in common or a coparcener with the heir and hence cannot maintain action for partition. — 21. A. & E. Eney. of Law, (2d Ed) 1155. After a lapse of thirty-five years the regularity and rightfulness of partition proceedings will be presumed. — Baker v. Pruett, 64 Ala. 551. Under the facts in this case the .widow did not hold as dowress, but her title was a fee simple title on its face. —Ball v. Papperton, 87 Ala. 290.
   DOWDELL, J.

This is a statutory action in the nature of ejectment, brought by the appellant against the appellees, to recover the' possession of certain lands described in the complaint. The facts in the case are practically without dispute, and it is not denied that at ono time the plaintiff held and owned the fee to the land in question. The important question in the case, and, we might say, the only question, is whether the plaintiff, Mary Julia Kennedy, prior to the partition proceedings which were had in 1866, conveyed her title to the land in question to Mrs. Lucy Ilatcher, under and through whom the defendant Mattie G. Rainey claimed the title.

It is conceded by counsel for appellees that the partition proceedings had in the probate court of Dallas county, which were nothing more in effect than a voluntary partition between the parties, did not and could not serve to create or divest title. ' The rule of law is too av;11 established to require' any citation or authority that partition operates upon the possession, and not upon the title, and selves to sever the unity of possession before oxisting. The theory of the defense as to the claim of title to the land in question in the defendant Mattie C. Rainey is ba^ed wholly and exclusively upon what is insisted by counsel for appellees to be a presumption of the law, indulged after a great lapse of time. In this case it is argued that, as 35 years have elapsed from the time (if the partition to the commencement of this suit, the presumption should obtain that Mrs. Lucy Hatcher, at some time between the dates of the death of her husband, John Hatcher, in I860, and the commencement of the partition proceedings in 386(5, by some transaction Avith the plaintiff, Mary Julia Kennedy, acquired title from the latter’in the lands that Avere partitioned. This argument is based mainly upon the folkwing authorities.— Normant v. Eureka Co., 98 Ala. 187, 12 South. 454, 39 Am. St. Rep. 45 ; Long v. Palmer, 81 Ala. 384, 1 South. 900 ; Wilson v. Holt, 83 Ala. 540, 3 South. 321, 3 Am. St. Rep. 768 ; McArthur v. Carrie’s Adm'r., 32 Ala. 75, 70 Am. Dec. 529. In none of the cases, hoAYtwer. are the facts the same as in the case at bar.

We think the undisputed eAudence in the case shows that Mrs. Lucy Hatcher Avas in possession of the entire tract of land which Avas partitioned from the time of the death of her husband, John Hatcher, until the time of the partition, under her quarantine right and Avith the right of having doAver allotted to her out of the lands. The doctrine asserted in the cases alum* cited, AAdiich are relied upon by the defendants, to the effect that the courts AAÚ11 decline to investigate or inquire- into the validity of such titles as those set up in the above-mentioned cases, but Avill make all reasonable presumptions necessary to uphold them, does not cut off, but leaves open to inquiry “the character of the defendant’s possession, cither in its original acquisition or in its continued use, as being on the one hand permissiA’e and in subordination, or on the other hostile and adverse.” In the present case the undisputed eA'idence1 sIioavs that the original acquisition or possession by Mrs. Lucy Hatcher Avas .in subordination to plaintiff’s fee, and its continued use by Mrs. Lucy Hatcher Avas Avholly consistent Avith the charter of the original acquisition or possession. On the eA'idence in the record there is no more ground or reason for presuming the passage of title in the land from Mary Julia Kennedy to Mrs. Lucy Hatcher prior to the inauguration of the partition proceedings than there, is for presuming.that the partition proceedings Avere had in pursuance to a. preAdous arrangement betAveen the. parties relative to Mrs. Hatcher’s doAver rights. While it is true as a matter of law that Mrs. Hatcher’s dower interest in the land was only one-third, yet it was entirely competent for the owner of the fee to enlarge this interest out of sheer generosity or for a consideration.

. The evidence fails to show that any hostile claim to the rights of Mary Julia Kennedy by Mrs. Hatcher up to the date of the latter’s death was ever brought to- the knowledge of Mary Julia, and the continued use of the land by Mrs. Hatcher was consistent with its original acquisition and in subordination to the fee of Mary Julia Kennedy. It fellows from what we have said, and it is our conclusion, that the court erred in its rulings and in the judgment rendered, and the same must be reversed and the cause remanded.

Reversed and remanded.

• Haralson, Anderson, and Denson, JJ., concur.  