The complainants in this case are the grandchildren of W. D. Fountain, who as the bill in its body alleges died in the year 1927, seized and possessed of the house and three lots which he occupied as his homestead, described in the bill as located in Block "F" of Monvil Park Addition to the Town of Monroeville, Ala. The proceedings in the probate court, a transcript of which is attached to the bill and made a part thereof, show that Fountain died on the 8th of November, 1926, leaving a widow and no minor children and that the said homestead was all the property he owned, that it did not exceed 160 acres in area nor more than $2,000 in value.
The decree of the probate court which the bill attacks was entered on the 25th of April, 1930, setting apart the property to the widow of decedent and vesting in her the legal title thereto. The proceedings on their face are in all things regular. The complainants Annie McDonald and Minnie Strock are the children of a daughter of said Fountain who predeceased him and George Fountain is a son of Alex Fountain, a son of said W. D. Fountain who predeceased said ancestor. The complainants so far as the allegations of the bill show were of full age at the time of the death of their grandfather. The bill was filed October 2, 1947, 20 years, 10 months and 24 days after the death of said W. D. Fountain and 17 years, 5 months and 7 days after the property was set apart by the Probate Court of Monroe County as exempt to the widow Bettie Fountain, vesting in her the absolute fee simple title, and fifteen years after the death of the widow in the year 1932. Bettie Fountain executed and delivered to her daughter Mrs. Riley a warranty deed to said property reciting a valuable consideration therefor on the date of the decree, April 25, 1930. Mrs. Riley and husband on March 8, 1933, conveyed by warranty deed to the respondents Urquhart, Snider, Barnes and McDonald for a recited consideration of $1 and other valuable considerations, reserving in Mrs. Riley a life estate. These deeds were both promptly recorded in the probate office of Monroe County, Alabama, the last mentioned on the 9th of March, 1933, the day after its execution.
The basis for the relief prayed is stated in the 5th paragraph of the bill as last amended as follows. "That your complainants and respondents are the heirs at law of W. D. Fountain, deceased, and that your complainants were never given any notice of the hearing of said petition and the appraiser's report either by citation or *Page 507 otherwise, and that they never signed said alleged acceptance of service of said notice. Copies of which are hereto attached as Exhibits E-1, E-2 and E-3. That they have examined their purported signature to said acceptance of notice which is on file in the Probate Court of Monroe County, and that the purported signatures are not theirs and that they have never authorized any one to sign said acceptance of service, nor did they know of any such proceedings on the part of the widow, Bettie Fountain, in petitioning the Probate Court to set aside said lands as her homestead or any such proceedings in said court relative to the setting aside of said homestead to the widow of W. D. Fountain, deceased, and had no knowledge of anything that would lead them to know or believe or cause them to make inquiry that such a proceeding was being had in the Probate Court of Monroe County, Ala., relative to setting aside a homestead to Bettie Fountain, the widow of W. D. Fountain, deceased. That at the time of said purported proceedings in the Probate Court of Monroe County that the aforesaid property was worth Twenty-five Hundred Dollars ($2500.00) or more."
The bill seeks to cancel the proceedings in the Probate Court of Monroe County on the grounds stated in said paragraph and to cancel the deed executed by Bettie Fountain to Mrs. Riley and the deed of Riley and wife to the respondents now in possession of the property, alleging that the adverse claim did not come to their knowledge until the death of Mrs. Riley a short time before the filing of the bill. There is an absence of allegation that during the twenty years and more the persons in possession ever recognized the rights of complainants to any interest in said lands.
The demurrer challenges the bill for want of equity and on specific grounds, among others.
"5. It clearly appears from the allegations of the amended bill of complaint that complainants are guilty of laches which should be held to bar them from maintaining this suit.
"6. It affirmatively appears from the allegations of the amended bill of complaint that Nannie F. Riley had held adverse possession of said property sufficiently long to perfect title in her by adverse possession.
"7. It appears from the allegations of the amended bill that Nannie F. Riley was an innocent purchaser of said property with no notice of the claim of complainants and that her conveyance to Lucy Urquhart, Fannie Snider, Viola McDonald and Daisy Barnes was likewise free from any such notice.
"8. It affirmatively appears that the said Nannie F. Riley acquired title to said property as an innocent purchaser on April 25, 1930, and held the same adversely under said title continuously until her death on January 21, 1947; and that no inquiry was made by complainants as to why she was in possession and no demand was made upon her for any accounting for rents or otherwise, and that during all this time the deed to her was upon the public records of Monroe County, Alabama.
"9. Nothing in the allegations of the amended bill charge the said Nannie F. Riley, or the present owners of the lands, with being a party to the alleged fraud, nor as having any knowledge that complainants claimed fraud as alleged.
"11. This cause was barred by the Statute of Limitations of ten years prior to the filing of the suit.
"12. Under the circumstances alleged in the amended bill, the complainants were charged with knowledge of the deeds from Bettie Fountain to Nannie Fountain (named as Nannie F. Riley) and from Nannie F. Riley and husband to Lucky Urquhart, Fannie Snider, Viola McDonald and Daisy Barnes from the date they were filed for record.
"13. It clearly appears from the allegations of the bill that Nannie F. Riley, as an heir of W. D. Fountain, would have no exclusive right to the possession of this property after the death of her mother, Bettie Fountain, during the year 1932; but if she had occupied the same as an heir of the said W. D. Fountain, she would have been legally bound to account to the other joint owners for rents. *Page 508
"15. That allegations of the amended bill show that the said Bettie Fountain was the widow of the said W. D. Fountain; that she proceeded in the way provided by law to have the property in question set apart to her as exempt; that it was so set apart by a court of competent jurisdiction, thereby vesting the fee simple title in her; that following this action she sold and conveyed the property to Nannie Fountain (same person as Nannie F. Riley) who occupied the same adversely until her death in 1947, being more than sixteen years; that her ownership and possession were not questioned during her lifetime, though her deed had been a matter of record for all these years.
"16. The regular decree of the Probate Court involved in this proceeding was a matter of record for about seventeen (17) years before it was attacked and no facts are shown to justify an attack at this late date.
"17. It clearly appears from the allegations of the amended bill that if complainants had exercised ordinary care in the matter of protecting their alleged property rights in this case they would have known all the facts many years ago.
"19. It does not sufficiently appear from the allegations of the amended bill that there would have been any different decree of the Probate Court in this case if complainants had been present at the hearing referred to; therefore, no loss or damage to complainants is shown.
"20. There is no allegation that the widow of W. D. Fountain, nor any of these respondents, knew of or participated in the alleged fraud."
The complainants' right to attack the proceedings of the probate court stems from their inheritance at the date of the death of their ancestor W. D. Fountain and as we have shown the bill in this case was filed more than 20 years after his death and as observed by this court, speaking through Justice Sayre in Kidd v. Borum, 181 Ala. 144, 161, 61 So. 100, 106, Ann.Cas.1915C, 1226, to paraphrase: During that time, it is to be inferred, complainants have enjoyed no benefit of their ownership and for more than 20 years they might have taken or claimed possession and upon denial of their claims might have maintained an action in their own name and behalf. "This court has repeatedly held that the lapse of 20 years, without recognition of adversary right, or admission of liability, operates an absolute rule of repose. Many of the cases are cited in Jackson v. Elliott, 100 Ala. 669, 13 So. 690, where the question of the application of the doctrine of prescription to a case between tenants in common was put aside because not raised by the record in such form as to require consideration. A reading of these cases leads us to the conclusion that, as to the estate for the life of testator's widow, defendants have been barred by a failure for more than 20 years to assert their rights. In the meantime complainant and her immediate predecessor in title have been in the uninterrupted and unquestioned possession of the land and in the like enjoyment of its undivided usufruct without the slightest recognition of the right now asserted by defendants. In such a case the court, for the repose of society, will presume any state of the title in order to maintain a status of parties and property so long allowed to remain undisturbed." Kidd v. Borum, supra; Moore et al. v. Elliott, 217 Ala. 339, 116 So. 346.
"The principle of prescription is also involved. This is a 20 year period after which the transaction is generally immune from attack made upon it, which is not affected by the circumstances of the situation as with laches, and applies without regard to the disabilities of the parties or their mental condition, but does not begin to run as long as the party opposed in interest recognizes the existence of the right. Hendley v. First Nat. Bank, 235 Ala. 664, 180 So. 667; Patterson v. Weaver, 216 Ala. 686, 114 So. 301; * * *." Wise v. Helms, ante, p. 227, 40 So.2d 700, 702.
The doctrine of prescription aside, it appears from the allegations of the bill that the proceedings instituted by the widow 3 years after the death of her husband, which resulted in setting apart the exemptions and vesting in her the legal title, a proceeding prosecuted for her benefit on the face thereof, the complainants signed an acceptance of service upon *Page 509 which the court acted in setting apart the exemptions and vesting said title in the widow. The widow died in 1932, — 17 years, 5 months and 7 days elapsing since the decree was rendered without any attack on the part of the complainants to claim any interest in the property and more than 15 years have elapsed since the death of the widow and complainants delayed to institute this suit until the death of Mrs. Riley to whom the widow conveyed the property by warranty deed. These facts appear on the face of the bill and under the settled law, the complainants are guilty of laches in seeking to vacate said decree of the probate court. Johnson v. Delony et. al.,241 Ala. 16, 1 So.2d 11; Meeks v. Miller, 214 Ala. 684,108 So. 864; Ammons v. Ammons, Ala.Sup., 42 So.2d 776.
Construing the averments most strongly against the pleader, the complainants designedly delayed to make any claim until the death of the widow and her grantee, who probably could and would have testified that complainants did sign said acceptance of service at their request and in their presence.
"Another rule in equity which finds frequent application is, that 'equity aids the vigilant, and not those who slumber on their rights.' or as the maxim is variously expressed in the Latin, 'vigilantibus non dormientibus factae sunt.' In equity a party is not permitted to sleep over his rights, to the prejudice of the party on whom he makes a claim, and who by the delay may be deprived of the evidence and means of effectually defending himself. Therefore, a demand must be made within a reasonable time; otherwise the claim is considered stale, and a court of equity, which is never active in relief against conscience or public convenience, has always refused its aid to stale demands when the party has slept on his rights and acquiesced for a great length of time. Nothing can call forth into activity a court of equity but conscience, good faith, and reasonable diligence. When these are wanting, the court is passive, and does nothing. This maxim not only covers generally the subject of laches, which is treated in detail elsewhere, but it has also been employed very broadly to deny relief generally to those who neglect to take care of themselves and who thereby suffer losses which ordinary care would have prevented. * * *." 10 R.C.L. § 138, p. 388. This text is founded on the decision of this court in Wright v. Paine,62 Ala. 340, 34 Am.Rep. 24, and other cases. See also 10 R.C.L., Equity, §§ 142-157.
In Ammons v. Ammons, supra, it was held that § 42, Title 7, Code of 1940, which gives a party one year after the discovery of fraud to proceed, "does not require actual notice, since a fraud is discovered within the contemplation of law when it is readily discoverable or when a party is put on notice thereof. Peters Mineral Land Co. v. Hooper, 208 Ala. 324, 94 So. 606."
I am of opinion that the decree of the circuit court overruling the demurrer to the bill should not only be reversed but that a decree should be here entered sustaining the demurrer and dismissing the bill.