Griffin v. Hall, 129 Ala. 289

129 Ala. 289 | Ala. | 1900

TYSON, J.

It is undoubtedly a sound proposition of law that if the defendant in execution has no interest or estate in the land sold, that the purchaser at such execution sale acquires no title.—Clements v. Pearce, 63 Ala. 284. However, as against judgment creditors and purchasers having no notice thereof, an unrecorded conveyance made 'by defendant in execution is void. — Code, §§. 1005, 1006. Notwithstanding such conveyance operates to transmit the title inter partes, as against judgment creditors and purchasers without .notice no title passes, and the"defendant’s, estate or interest is subject to sale under execution. The only question, here presented is whether the plaintiffs, who were judgment creditors and purchaser's at execution sale of the lot in controversy, had notice of the unrecorded deed under which the defendant Griffin claims title to it prior to or at the date of the rendition of the judgment. The evidence on this point as 'shown in this record is the sainé as was the evidence in the two causes between the same parties reported in 111 Ala. 601 and 115 Ala. 647. In both cases this court held, that the deed under which the defendant Griffin claims title to the lot was void as to these plaintiffs, not having been recorded before they acquired a lien on the land as judgment creditors of the grantor, and they having no knowledge or notice in fact 'or otherwise constructively of it.

It is contended that the view expressed in the case reported in 111 Ala. was dictum and is opposed to the principles announced in the case of Tutwiler v. Montgomery, 73 Ala. 263. Both propositions must be conceded, but- the decision of this question in the case in 115 Ala. is not clicta. It was the vital question in that case; and the decision is supported by the cases of King v. Paulk, 85 Ala. 186; Paulk v. King, 86 Ala. 332, holding that it requires an actual change of possession in contradistinction to a constructive one, to charge a creditor or purchaser with notice of an unrecorded deed. This principle is reaffirmed in Troy v. Walter Bros., 87 Ala. 233; Hall v. Griffin, 119 Ala. 214; Bynum v. Gold, 106 Ala. 427. We adhere to the principles declared in the later cases and must decline to follow Tudiciler v. Montgomery, supra. That case must be regarded as overruled on this point.

There are other assignments of errors, but they are not insisted upon in argument.

There was no error in giving the affirmative charge for the plaintiffs.

Affirmed.