Marshall v. Lister, 71 So. 411

Marshall v. Lister

71 So. 411 | Ala. | 1916

Lead Opinion

ANDERSON, C. J.

(1) It may be conceded only for the purpose of deciding this case that the land in question was bought with the complainant’s money by her husband, who took the deed in his own name, and that there was therefore a resulting trust in favor of the wife, this appellant; yet this trust was inoperative and void as against the judgment lien of M. Starnes, doing business in the name of the New South Rubber Tire Company, which said judgment was obtained and certified to the probate office before the registration of the deed from the husband, P. W. Marshall, to his wife, this appellant, and there is no proof in this record of notice to the said M. Starnes of the existence of the equity attempted to be enforced by the original bill of complaint. — Section 3413 of the Code of 1907; Preston v. McMillan, 59 Ala. 84; John Silvey Co. v. Cook, 191 Ala. 228, 68 South. 37.

*593The appellant contends that the possession of the land by the husband, or of the husband and wife jointly, will be referred to the wife, or to the husband’s representative capacity, and that such a possession is equivalent to notice of said equity. This contention finds support in the case of Robison v. Robison, 44 Ala. 227, but this case is in direct conflict with the latter case of Preston v. McMillan, 58 Ala. 84, and is out of line with many of the decisions of this court, and is not sustained by the authorities there cited. The correct rule is that, when husband and. wife live together on land — that is, have a community of possession — the possession will be referred to the one who has the legal title, and which was not only in the husband in the case at bar, but his deed was upon the records of the county. — Anglin v. Thomas, 142 Ala. 264, 37 South. 784; Larkin v. Baty, 111 Ala. 303, 18 South. 666, and cases cited.

The case of Gwynn v. Hamilton, 29 Ala. 233, cited in the Robison Case, supra, does not support the holding in said Robison Case in point or by analogy. The other case cited, Michan and Wife v. Wyatt, 21 Ala. 813, is opposed to the holding in said Robison Case. There the wife, and not the husband, had the title, and it was said in the opinion: “In such case the possession will be referred to the title and the husband will be regarded as the trustee for the wife.”

The Robison Case, supra, has been, in effect, overruled by the decisions of this court, but in order to remove all doubt in the future as to the soundness of same upon the point at issue it is hereby expressly overruled.

We do not think that the chancery court committed reversible error in not sustaining the complainant’s objection to proof of the exhibits to the answer and cross-bill.

The decree of the chancery court is affirmed.

Affirmed.

All the Justices concur.

Rehearing

ON REHEARING.

(2) It is now suggested for the first time that the respondent M. Starnes had notice of the equity of Julia Hill Marshall in the land, or of facts to put him upon inquiry. Counsel insist that P. W. Marshall testified that he told Starnes’ attorneys, Inzer & Inzer, before the judgment was obtained that his wife owned the land. We find the following statement in the testi*594mony of P. W. Marshall, on page 66 of the record: “But it is a fact that I told J. C. Inzer prior to the institution of said suit that I had no property; that what I had control of belonged to my wife.”

Whether or not this would be notice of the claimed equity of the wife we do not decide; for this may be conceded, and still it does not show notice to the respondent M. Starnes. The record does not disclose who J. C. Inzer was, or, if a member of the firm of Inzer & Inzer, respondent’s solicitors, that he was attorney for Starnes in the claim in question when the statement was made to him. It was made before the institution of the suit, and may have been made before Inzer & Inzer became Starnes’ lawyers for the collection of this claim.

“Notice to an attorney or knowledge acquired by him is not notice to his client, unless given or acquired after the relation began.” — 2 Ency. Dig. Ala. Rep. § 57, p. 121, and Alabama cases there cited.

The application for rehearing is overruled.