127 So. 224 | Ala. | 1930
Complainant on October 18, 1926, recovered a judgment in a tort action against defendant John F. Burton. He seeks by the bill in this case to set aside as fraudulent and void a deed to certain real estate executed to defendants, H. B., H. C., and S. F. Brasher bearing date October 25, 1926, as in fraud of his rights as creditor of said Burton.
The "Brashers" (to so designate for convenience these three defendants) insist by their pleading and proof that they were bona fide purchasers for value, and invoke the protection due to innocent purchasers. The chancellor was persuaded of the correctness of their position, and upon final hearing dismissed the bill. Complainant appeals.
We conclude the decree is correct.
Complainant's suit against Burton was pending at the time the Brashers purchased, but the evidence is without dispute that they had no actual knowledge or notice thereof. No specific property was sought in that action — merely the recovery of a money judgment, and the doctrine of lis pendens had no application. Moragne v. Doe, etc.,
The purchase price paid by the Brashers was $600, and, according to the great preponderance of the evidence, this was full value therefor. Under the circumstances here disclosed, the burden rested upon complainant to show that these purchasers for a valuable and substantial consideration had notice of an intent by their grantor to hinder, delay, or defraud his creditors. Boutwell v. Spurlin Mercantile Co.,
These purchasers insist they had no knowledge of any such intent on the part of the grantor, and no notice of any facts which would have lead to such knowledge, and we find no proof to the contrary. Complainant must therefore rely upon constructive notice. We have shown the doctrine of lis pendens is without application, and it appears that the certificate of judgment was not recorded until October 27, 1926, two days after the purchase. So far, therefore, as the suit and the judgment are concerned, there could be no constructive notice.
It appears that while complainant's suit at law was pending against said John F. Burton, and on August 15, 1925, said Burton conveyed the property here involved to his wife Velma upon a recited consideration of $1, and it is insisted said conveyance was voluntary and, as such, void against complainant, an existing creditor. We recognize the well-established rule that notice is imputed to a purchaser of infirmities and incumbrances appearing in his chain of title. Johnson v. Thweatt,
Appellant further argues that a grantee in a quitclaim deed cannot be an innocent purchaser, a doctrine recognized by the decisions of this court. O'Neal v. Seixas,
"Now, even in those courts in which the rule was announced that one who takes under a quitclaim deed cannot be a bona fide purchaser, it was sometimes limited to the grantee in such a deed, and not extended to those cases in which a quitclaim was only a prior conveyance in the chain of title (Snowden v. Tyler,
And in the later case of Stanley v. Schwalby,
The author of the note to Hickman v. Green, 29 L.R.A. 39, says: "The greater number of cases as well as sound principle hold that if a grantee receives a warranty deed he will not be affected by the fact that his grantor or some more remote person in the chain of title received merely a quitclaim deed." Mr. Pomeroy has a note to like effect with citation of cases in 2 Pomeroy Equity Jur. (3d Ed.) p. 1341. See, also, note Downs v. Rich, 25 L.R.A. (N.S.) 1035; 27 Rawle C. L. p. 735.
The doctrine recognized by this court in McKee v. West, supra, that a bona fide purchaser for value without notice of the fraud is protected, though he purchased from a fraudulent grantee, bears analogy to the question here considered, and in principle is supportive of this view. We are persuaded that the doctrine of protection to such bona fide purchaser, as here indicated, is the more equitable and reasonable one and will be here followed. The fact, therefore, that the grantor of the Brashers held under a quitclaim deed does not deprive the latter of the protection due bona fide purchasers for value without notice.
There is some suggestion in brief for appellant, though followed by no argument in its support, "that the defense of innocent purchaser is not sufficiently pleaded," and the case of Allen Co. v. Sands,
The decree will be here affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.