Beal v. Miller

the devise to her, it was, I think, only such an interest as could be enforced by a foreclosure of the mortgage, when the question could be determined as to the extent of that interest or its validity, after it had remained unpaid for a period of time, sufficient to raise a presumption of payment. The mortgage itself, or so much of the same as wTas vested in Sarah Beal, did not constitute evidence of title which would authorize the mortgagee, or his assigns or representatives, to maintain an action of ejectment for the recovery of the possession of the mortgaged premises or any part thereof.^[12] There are other objections to upholding the title of the plaintiff upon any such basis. It had ceased to be a lien by the operation of the statute of limitations, as more than twenty years had expired •since a right of action had accrued on the same. And, as to David P. Corey and his assigns, it was invalid under the recording act, for the reason that Corey was a bona fide purchaser for value from George W. Beal, and his deed was duly recorded, while the mortgage was never put on record.^[13]

II. The deed from Zebulon Cook and wife, to Sarah Beal, conveyed an undivided half of the premises, which he had acquired by virtue of the conveyance from Yedder, and there is no evidence that Cook, at this time, had any other or different title from that which he had thus acquired. There is no evidence that he had ever acquired the title of George W. Beal, or that he ever held possession of the premises in opposition to Beal’s title. Cook was a tenant in common with Beal, and whatever possession he had, must be presumed to have been for the benefit of himself and his co-tenant. Every legal presumption is in favor of a possession in subordination to the title of the true owner, and, unless when possession is taken by one tenant in common, a clear and positive disclaimer and disavowal of the title of his co-tenant, and an assertion of an adverse right is made and brought to the knowledge of the co-tenant, there is no foundation laid for the operation of the statute of limitations. Such, clearly, was not the fact in the case at bar, and, by virtue of the deed in question, Sarah Beal only acquired a title to an equal, undivided one-half of the premises in dispute.

The recording of the deed from Cook to Sarah Beal, cannot, I

think, affect the rights acquired by George W. Beal under the deed from Vedder to him, because, 1st. The deed from Cook only conveyed his interest in the premises, which was an undivided half, and in no way affected the remaining half which belonged to George W. Beal. Sarah Beal, therefore, was not a subsequent purchaser for a valuable consideration, within the provisions of the Revised Statutes, so far as George W. Beal’s interest was concerned.^[12] 2d. As the deed to George W. Beal was executed in 1816, the provisions of the Revised Statutes could not affect the recording of it.^[13] At the time when the deed was executed, the law did not require that it should be recorded, and hence the rule invoked has no application.^[10] It is further insisted that the defendant is estopped from claiming that Sarah Beal was not the owner of the whole of the premises, for the reason that the deed from Cook and wife to her, recites a deed from Harmanus Tedder and wife to Zehulon Cook and Sarah Beal. The recital in the deed referred to, is a statement after the description of the premises, as follows: “As the same is described in a deed executed to both parties by Harmanus Tedder and his wife.” This description may very properly he interpreted as referring to the instrument indorsed on the mortgage, as no other deed is introduced in evidence, and which included George W. Beal as well as the other two persons therein named. Assuming, however, that it did not, it can scarcely be claimed, I think, that the defendant is a party or privy, claiming solely under the deed from Harriet Beal to Marcellis and Winegar, of One-half of the premises, executed in 1859. It is true he claims for one-half under the last-mentioned deed, but he also claims the other half, under the conveyance by George W. Beal and wife, to David T. Corey, in 1835, and Corey’s subsequent conveyance of the premises to the Central Railroad Company, and the intermediate conveyances, by virtue of which he acquired title.

If a privy or party, he could only be bound to the' extent of his claim, and has a perfect right to maintain his title under another and a different source, to the one-half not embraced within the conveyance from Harriet Beal. It may also he remarked, that, inasmuch as the title, derived by the conveyance of Tedder to Cook

and George W. Beal, dates anterior to the conveyance from Cook to Sarah Beal, the latter must he considered as a grant, subject to all rights which had previously been conveyed by Tedder, and cannot, in any way, affect the interest of George W. Beal, or the parties claiming under him. The plaintiff ’s counsel also claims that Georgé W. Beal, by his acceptance of a legacy bequeathed to him by Sarah Beal, lost all title which he had acquired under the deed of Tedder to him and Cook, in 1816, to the undivided half of the premises. The legacy bequeathed, was a writing desk, of trifling value, and it is said that the acceptance of this bequest, Avas a renunciation of any title or claim which George W. Beal had to the wheat lot, which, by the same will, was devised to the plaintiff. The plaintiff seeks to apply a familiar rule in equity, called the doctrine of election, by which, one, who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing all rights inconsistent with it. And, if a testator has affected to dispose of property, not his own, and has given a benefit to the person to whom that property belongs, the legatee or devisee, accepting the benefit so given to him, must make good the testator’s attempted disposition. If he insists upon retaining his own property, which the testator has attempted to give to another, equity will appropriate the gift, for the purpose of making satisfaction out of it, to the persons whom he has disappointed by the assertion of those rights.^[12] It must be clear, beyond any reasonable doubt, that he has intentionally assumed to dispose of the property of the beneficiary, who is required, on that account, to give up his own gift.^[13] There is considerable difficulty in the application of this rule to the case at bar. It is by no means clear that the testatrix intended, by the devise to the plaintiff, to dispose of more than her interest in the property. Every presumption is in an opposite direction, with no facts or surrounding circumstances .to rebut such presumption. This rule is held not to be applicable, where the testator has some present interest in the property disposed of by him, although it is not entirely his own. In such a case, unless the intention to dispose of the whole estate, including the interest of third persons, is clearly manifest, he will be presumed to have intended to dispose only of

that interest in the property, which he might lawfully dispose of.^[12] This principle is applicable to cases where a legacy is given to the wife, and not expressed to be in lieu of dower, and it is held that she is not put to her election.^[13] It is utterly improbable, and by no means inferable, upon any rational theory, that the testatrix intended to appropriate the property, and an entire one-half interest of her;son, George W. Beal, and bequeath, in return for the same, the inadequate and small legacy named in the will. This is also a case, I think, where the expressions employed, are of such a character as will admit of being restricted to an interest belonging to, and disposable by, the testatrix, and, therefore, will not be held to apply to property over which she had no disposing power, wdthin the principle decided in Havens v. Sackett (supra).

Even if the doctrine contended for, is applicable in cases where the intention is plain and clear, it is only a rule in equity, and, as the law abhors forfeitures, should not be held to apply in an action at law against an entire stranger and a bona fide purchaser for a valuable consideration.

While courts of equity may carry out and enforce the intention of partie s, and do exact justice between them, and may compel one who has accepted a bequest or devise under a will, to renounce all benefits inconsistent with other provisions, in which other parties have an interest, I am unable to discover how a court of law can thus defeat a title. It is held that a devise by one who is not a legal owner, cannot transfer the legal title to the property, nor can it operate by estoppel, against the legal owner, who is also a beneficiary under the will.^[10] The current of authority upon the question, which has been much discussed, whether the principle, governing cases of election under a will, is forfeiture or compensation, especially those of a recent date, is strongly and decidedly in favor of the principle of compensation; and it is said by Mr. Justice Stoby, that the fair result of the modern .leading decisions, is, that in such a case, there is no absolute forfeiture.^[11] The right of the

plaintiff, therefore, to apply the rale in question if the facts authorized it, is only capable of being enforced in an equitable action against George W. Beal, and his grantees who have notice of such equity. Corey, being a bona fide purchaser from George W. Beal,without any notice that the plaintiff had any latent equity, has a superior equity, I am inclined to think, to that of the plaintiff. The role in equity is, that, as between two parties having equal equities, the prior equity must prevail; but if the party having the subsequent equity, clothes himself with the legal title before he has notice of the prior equity, such legal title must prevail.^[12] It is, therefore, difficult to see how, even in an equitable action, the equitable right of the plaintiff, if any exists, could be enforced against Corey and his grantees.

The counsel for the plaintiff relies upon the case of Padbury v. Clark,^[13] as an authority decisive of the question discussed. The case cited, is by no means analogous to the one at bar. The former was a bill in equity, and charged that one of the devisees had elected, and was bound to elect under the will. The testator was entitled, in that case, to a fee in an undivided moiety in two houses, and to another undivided moiety in a leasehold house, and, by his will, devised “ all my freehold messuage or tenements,” etc., referring to the two houses only, thus assuming that he was the owner of the whole, and not the one-half the houses; and, in another clause, devised “ all that my moiety or half part of the whole,” etc., “ in the leasehold messuage,” etc., to the defendant.

It was held that the words, first used, were a gift of the entirety, and raised a question of election, as against the party entitled to the other moiety who took' beneficially under the will; and that this construction was corroborated by the fact of the testator’s having used apt words, in disposing of his interest in the leasehold. The devisee would thus have received some compensation in return for the estate, which would have been surrendered by an election to take under the will. The Lord Chancellor decided that the defendant had not elected, but, as the rents were received by the trustee of the defendant or her father, for her usé, and she had elected to take against the will, she was bound to make good to