Coulson v. Scott, 52 So. 436

Coulson v. Scott

52 So. 436 | Ala. | 1910

ANDEESON, J. —

When this case was here on former appeal (156 Ala. 450, 47 South. 60), Ave held that the title was prima facie in the plaintiffs as heirs of Jerusha Gullatt, who held under a deed from Isaac Clark, of date 1838. We also held that the defendants did not trace their title beyond the Bank of Decatur, that it showed no title from Isaac Clark to said bank superior to the deed from the said Clark to his daughter Jerusha Gullatt. Upon the next trial, the one from *610which this appeal is taken, there was evidence tending to show that the deed from Clark to his daughter, while placed on record by him, was in fact never delivered and was made by him, not to operate as a conveyance, but to delude his creditors. If the deed was never delivered, notwithstanding the recordation of same might be prima facie evidence of a delivery, the title never passed to his daughter, and the plaintiffs could not recover upon the strength of said deed to their grandmother. On the other hand, if the deed was void as to the creditors of Isaac Clark, notwithstanding it may have been binding between the parties, and said creditors successfully impeached it and sold or acquired the land by enforcing their claim, a purchaser under the process would acquire a title superior to that of Mrs. Gullatt, who held under said fraudulent deed. The evidence tends to show that, shortly after the making of the deed of 1838, the bank and the other creditors obtained judgments against Clark, had the land sold under execution, and the bank bought it at sheriff’s sale. The bank brought an action of ejectment against several, including Gullatt and his wife, for the land, and got a consent judgment for the same. The record does not show that Mrs. Gullatt was a party to the suit or the consent judgment, but the deposition of Gullatt shows that she too was sued, but, whether she was or not, the presumption is that her deed was successfully impeached, else the plaintiffs could not have recovered the land under the deed from the sheriff, which was of subsequent date. The judgment recognized the superior title of the bank and the invalidity of the deed from Clark, to his daughter, and, whether the judgment was or was not conclusive, it, with the other evidence in the case, tended to show that the deed, even if delivered, was void as against the. bank, and that the bank got a.title superior to the one claimed *611by Mrs. Gullatt. If tbe bank acquired tbe title, and there was evidence for tbe jury to show that it did, then Gullatt acquired a title superior to that of bis wife or her beirs under bis deed from tbe bank. It might, be that if Gullatt merely redeemed the land, being tbe life tenant, it was for tbe benefit of tbe remaindermenbut tbe evidence shows a straight-out purchase from tbe bank, and after tbe right to redeem bad expired, under the terms of tbe consent judgment. It also appears from tbe chancery record and deposition of Gullatt that, be claimed as purchaser, and not through curtsey 40 years ago, and in a proceeding in which tbe plaintiff’s parents, tbe then claimants under, tbe Clark deed o'f 1838, were parties, and, whether this was conclusive on them or not, it was an evidential fact that Gullatt bad bought tbe land instead of merely redeeming it for tbe benefit of bis wife’s beirs.

Tbe trial court did not err in so much of tbe oral charge as was excepted to, to tbe prejudice of tbe plaintiffs, nor in refusing tbe general charge requested by tbe plaintiffs.

There was no error in giving charges 6, 7, and 8 at tbe request of tbe defendants. They assert tbe law and were not abstract.

Tbe objection to tbe chancery court records was general and applied to all of tbe papers and proceedings. Whether they were all competent or not, some of them were, and tbe trial court cannot be put in error for overruling tbe objection that was interposed. Tbe answer of tbe plaintiffs’ mother and father, seeking cross-relief and claiming the land under tbe deed to Mrs. Gullatt, was competent to show that tbe title under which the present plaintiffs claim was an issue and made tbe deposition of Gullatt competent, and, as be was then dead, his former testimony in a controversy involving. *612the present issue was proper.—Clealand v. Huey, 18 Ala. 343; Goodlett v. Kelly, 74 Ala. 220; Patton v. Pitts, 80 Ala. 373; Smith v. Keyser, 115 Ala. 455, 22 South. 149; 1 Greenleaf (16th Ed.) p. 278; 16 Cyc. 1094.

The case of Robbins v. Wooten, 128 Ala. 373, 30 South. 681, has no applyication to this case, as the proof does not show a ratification by the creditors of the conveyances, but tends to show that they attacked said deed, by having the land sold to satisfy the judgment, bought it at' a sheriff’s sale, and the law will presume that the sheriff made them a deed, as it was 60 years ago, and the proof shows that the sheriff sold it to satisfy the bank judgment, and that the bank bought it. Moreover, the bank also subsequently recovered the land in an action of ejectment. — Duncan v. Williams 89 Ala. 341, 7 South. 416; Matthews v. McDade, 72 Ala. 377. Nor could the purchase by Gullatt from the bank, which got the title by successfully attacking the fraudulent deed, operate as a ratification of said deed, as he acquired the title through a source which was hostile to said deed and which was based upon the invalidity of said deed.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Sayre, JJ., concur.