The sole question presented and decided is whether or not the bill as amended shows on its face that the complainant was guilty of laches in seeking cancellation of the deed. If she was guilty of laches and this appears on the face of the bill, it was subject to the grounds of demurrer. There is no division of opinion here on that question. Van Ingin v. Duffin et al.,158 Ala. 318, 48 So. 507, 132 Am. St. Rep. 29. All the justices agree that the original bill was subject to this objection.
The majority of the justices concur that if complainant remained in possession of the lands under claim of right jointly with her grantees, and did not have actual knowledge that the grantees in the deed had mortgaged the lands, and the covenant to furnish support and maintenance to complainant was not otherwise breached until the mortgage of the life insurance company was foreclosed, depriving the grantees of the ability to furnish support to complainant, her right of action did not accrue until such breach, and she was not guilty of laches. But in such circumstances she would only be entitled to have a decree protecting her equity from the operation of the mortgage. (GARDNER, BOULDIN, and FOSTER, JJ., concur in the foregoing.)
The writer and Justice GARDNER are of opinion that the amendment to the original bill does not cure the defects pointed out by the demurrer. If the averments of the fourth paragraph are true, and they must be so taken on demurrer (Elmore, Quillian Co. v. Parrish Bros., 170 Ala. 499,54 So. 203), the covenant was breached as soon as the deed was executed, and the grantees in the deed have "wholly failed to take care of said complainant, the grantor in said deed." This was clearly a breach of the covenant, and the complainant's right of action accrued at that time, and if she failed to assert her right to annul the deed for ten years, or more, after the cause of action accrued, she is barred by the statute of limitations, and is guilty of laches. Hannah et al. v. Culpepper, 213 Ala. 319, 104 So. 751; Woods et al. v. Wright,223 Ala. 173, 134 So. 865; Davis v. Harris et al., 211 Ala. 679,101 So. 458; Van Ingin v. Duffin et al., 158 Ala. 318,48 So. 507, 132 Am. St. Rep. 29.
There can be no question but what the averments of the fourth paragraph of the original bill are inconsistent with the averments of that paragraph added by amendment, and, therefore, if the rule in respect to construing the averments of a pleading most strongly against the pleader is adhered to, the averments most favorable to the demurrant will be accepted as true, and these averments, as we have stated, show that the complainant's right of action accrued in 1908, more than twenty years before the bill was filed. See 18 C.J. page 378, § 434.
The substance of the holding in First Nat. Bank of New Brockton v. McIntosh, 201 Ala. 649, 79 So. 121, L.R.A. 1918F, 353, is that "the grantor is not barred *Page 484 from equitable relief by laches where he is and has been in possession of the property and the grantee has asserted no adverse right." See 18 C.J. page 379, Note 15.
Here the averments of the bill show that the grantees have been asserting adverse right, have been trafficking with the title by repeatedly mortgaging the lands for debts contracted, from the execution of the deed on up to 1923, and this, so far as the bill shows, with actual knowledge of the complainant, except as to the mortgage executed to the Phoenix Mutual Life Insurance Company to refinance the loan previously procured; and the complainant did not move until the insurance company foreclosed its mortgage and sought to deprive her grantees of the possession of the property. It further appears that the grantees are not now resisting the cancellation of such deed.
I am now of opinion that the circuit court did not err in sustaining the demurrers to the bill as amended, and the complainant failing to further amend, the bill was properly dismissed.
GARDNER, J., concurs in the foregoing.