(82 South. 428)

#### SCREWS et al. v. WALL et al.

(6 Div. 918.)

Supreme Court of Alabama.

June 5, 1919.

Rehearing Denied June 30, 1919.

1. Quieting Title <&wkey;12(6) — Necessity of Possession — Reversionary Interest.

Heirs of surviving wife, having reversionary interest in wife’s real estate subject to surviving husband’s life estate, may file bill to remove cloud from their title .in reversion, though not in possession of land, since husband’s life estate precludes their possession of land.

2. Alteration of Instrument <&wkey;29 — Mutilation — Erasing of Grantee’s Name— Sufficiency of Evidence.

In action by deceased wife’s heirs to quiet title to their reversionary interest in wife’s land, evidence *held*to show that wife was named, together with husband, as grantee in deed, and that deed was mutilated and her name erased therefrom prior to its recordation.

Appeal from Circuit Court, Blount County ; Woodson J. Martin, Judge.

Bill by John W. Wall and. others against H. R. Screws and others. Decree for complainants, and respondents appeal.

Affirmed.

Complainants, brothers and sisters and next of kin of Sallie Screws, deceased, filed this bill against appellants H. R. Screws and J. C. Reid, seeking to remove a cloud upon their title.

The bill, in substance, charges that, at the time of the death of Sallie Screws, she owned in fee simple an undivided one-half interest in a certain 40 acres of land, together with her husband, H. R. Screws, and that upon her death the said H. R. Screws was entitled to a life estate in said one-half interest and the reversionary vested in these complainants. Sallie Screws acquired title to the one-half interest by virtue of a deed executed by H. P. Wall and wife, Stella Wall, conveying said 40 acres of land to H. R. Screws and Sallie Screws jointly, and that Sallie Screws died owning said undivided one-half interest; that said deed was executed and delivered to H. R.. Screws, and that after the death of said Sallie Screws, the said H. R. Screws, or some one at his instance and request, altered said deed so as to erase from the same the name of Sallie Screws as a grantee, and that after such erasure it was recorded, and, as recorded, discloses only a title in the said H. R. Screws; that after the recordation of said deed H. R. Screws sold said land to respondent J. C. Reid, who purchased with knowledge of the mutilation of said deed, and with knowledge that complainants claimed an interest in the land. It is prayed that the court decree that said H. R. Screws had only a life estate in said one-half interest of Sallie Screws, and that it be | entered on the margin of the record of the deed that said Sallie Screws owned an undivided one-half interest in said land, and that it also be entered on the margin of the record of the deed from PI. R. Screws to J. G. Reid the fact that said undivided one-half interest of Sallie Screws was not conveyed by said deed of H. R. Screws.

There was a demurrer to the bill for want of equity. The bill was answered by respondents I-I. R. Screws and J. G. Reid denying any mutilation of said deed, and insisting that the deed was made to H. R. Screws only, and that the land was bought and paid for with his money.

Numerous witnesses were examined by the respective parties. The complainants’ testimony went to show that at the time of the execution and delivery of the deed it was made to H. R. Screws and Sallie Screws jointly. The testimony of John W. Wall, who took the acknowledgments to the deed, and H. P. Wall, the grantor, was to the effect that the transaction wasi had with I-I. R. Screws, and that Sallie Screws was named as grantee in the deed at the request of H. R. Screws; said Sallie Screws not being present at the time of the execution and delivery of said deed. This testimony was objected to upon the ground that these two witnesses were parties to the suit, and that Sallie Screws was deceased, and therefore, under section 4007 of the Code of 1907, they were incompetent to testify. The court ruled that such testimony was competent. Stella Wall, the wife of the grantor, testified to like effect, and the testimony of witness Vaughan, and other witnesses offered by the complainants, tended to support the allegations of complainants’ bill. There was also evidence tending to show that respondent Reid had notice of the claims of these complainants as to their interest in this land at the time of his purchase. Respondent H. R. Screws insisted that the deed was made to him individually, and that no' mutilation thereof had been made, but that the deed was lost.

The chancellor rendered a decree granting relief as prayed, and from this decree respondents prosecute this appeal.

Russell & Johnson and James Kay, all of Oneonta, for appellants.

Calhoun & Sons, of Oneonta, for appellees.

GARDNER, J.

[1] The complainants owned only a reversionary interest in the real estate here in controversy, and the outstanding life estate is an obstacle or impediment ifi the way of the assertion by complainants of their legal rights, and therefore — although out of possession — they have a right to maintain this bill to remove the cloud from their title in reversion. It is quite clear that the bill has equity, and the *179demurrer was properly overruled. Fies v. Rosser, 162 Ala. 504, 50 South. 287, Mitchell v. Baldwin, 154 Ala. 346, 45 South. 715.

[2] It is insisted by appellees, and was so ruled in the court below, that the witnesses John W. Wall and H. P. Wall, although parties to the suit, were not incompetent to testify under the circumstances outlined in the foregoing statement of the case, under section 4007 of the Code of 1907. Wood v., Brewer, 73 Ala. 259; Miller v. Cannon, 84 Ala. 59, 4 South. 204. While appellants insist that, under the authority of Blount v. Blount, 158 Ala. 242, 48 South. 581, 21 L. R. A. (N. S.) 755, 17 Ann. Cas. 392, McDonald v. Harris, 131 Ala. 359, 31 South. 548, Napier v. Elliott, 152 Ala. 248, 44 South. 552, and other authorities, such witnesses were incompetent to testify. We pass the question by as being unnecessary to be here determined, as other witnesses — the admissibility of whose testimony is not questioned— testified to like effect, and this evidence was strongly corroborated, and to our minds sufficiently convincing. After a careful consideration of this evidence (placing aside, for the moment, that here attacked), we are persuaded the complainants have made out a case entitling them to the relief sought. We do not consider a discussion of the evidence necessary. It has been most carefully considered, and we are persuaded that the court below reached the correct conclusion, and that his decree should he affirmed.

Affirmed.

ANDERSON, O. J., and McCLELLAN and SAYRE, JJ., concur.