Butler v. Thweatt

119 Ala. 325 | Ala. | 1898

COLEMAN, J.

The complainant, Mary J. Butler, filed the present bill under the proAdsions of the act of Dec. 10,1892, noAV codified in sections 809-812, inclusive, of the Code of 1896. The averments of the bill are sufficient to give it equity. Hiram Thweatt, father of complainant, purchased the land in controversy in the year 1869. His title is not questioned. Complainant and her husband Avent into possession by permission of Hiram Thweatt in November, 18G9. Complainant claims title by virtue of an unrecorded deed of gift which she contends was executed by her father to her in December, 1869, while she was in the possession of the land, and also by adverse possession. The respondents deduce title directly from Hiram Thweatt, by virtue of a mortgage executed by him in the year 1891, foreclosure, purchase, and deed. This chain is regular, and their title is perfect as to all the right, title and interest held and owned by the mortgagor at the time of the execution of the mortgage. Respondents deny that complainant was in the peaceable possession of the land at the time of the filing of the bill, and also deny that she has ever held the land adversely, and deny the execution of any deed to her by her father, Hiram Thweatt. Respondents further contend, that if Hiram Thweatt ever executed a' deed to complainant, it would be a fraud on respondents to allow her to assert such a claim, under the facts of the case.

The facts show that for the year 1895, the year preceding the filing of the hill, the husband of complainant rented the lands from the purchaser at foreclosure sale, cultivated the same under his lease, and paid the rent; and that he ren! ed the same again in 1896, the year in which the bill was filed, for an agreed price. Uninfluenced by any deed from Hiram Thweatt to complainant, Ave are of opinion, that the evidence Avould lead to the conclusion, that she Avas not in peaceable possession within the meaning of the statute, at the time of the filing of the bill, and that she never acquired a title by adA’erse possession. There is no controArersy of the fact that complainant has been living on the land continuously since she moved on it in the year 1869.

The question of first importance is, does the evidence reasonably show, that her father, Hiram Thweatt, executed to her a deed of conveyance, anterior to the execution of the mortgage? A great deal of incompetent testimony was introduced on this question, some of Av’hich is open to severe criticism, but after eliminating all such testimony, and a careful consideration of that only which is legal, we have reached the conclusion that Hiram Thweatt executed the deed of gift to his daughter, the complainant, to the lands in controArersy. There is nothing unreasonable in the statement, that upon ascertaming that hex’* father had represented these lands as belonging to himself in order to procure a loan, and to secure it, had put these lands in a mortgage, upon his solicitation, and promise to return the deed to her after the debt had been paid, that she delivered the deed to him; nor is it at all improbable that both she and her husband believed by the surrender of the deed, that she had lost the land. Assuming then, that the deed was delivered to her, investing her with the ownership and title to the land, her uninterrupted and continuous possession from that time to the filing of the bill would be referred to her title, and no act of purchase or renting by her husband, in which she did not participate, could oust her of such possession. Her possession under a valid title, though unrecorded, was notice to all the woxdd, and parties who contracted with reference to these laxxds, are chargeable xvith notice of title. This principle is well settled in this state.

A sufficient predicate was laid to authorize the introduction of secondary evidence of the execution and contents of the deed. It may be that coxxxplainant knew of the execution of the xixortgage through which respoxxdents claiixx, but the evidence is not sufficient to convince xxs, that she induced the loan of xxxoney, either affirmatively or negatively.

The facts and circxxmstances are not sxxfficient to show fraud on her part, or to operate as an estoppel. Oxxr conclusion is that coxxxplainant is entitled to relief.

A decree will be here rendered, annulling the decree of the chancery court and granting the relief prayed.

Reversed and rendered.