Munn v. Achey, 110 Ala. 628

Munn v. Achey

110 Ala. 628 | Ala. | 1895

HEAD, J.

On the 22d day of October, 1887, Daniel Munn conyeyed to his three sons what was known as his “River Mill Place,” consisting of 720 acres, his deeds containing an acknowledgment of the receipt of the purchase price. About two years afterwards, the vendees borrowed twenty-five hundred dollars from the defendant, Frances L. Achey, and executed to her a mortgage on the lands to secure the same. At the time of the loan, Eveline Munn, widow of the vendor, and mother of the mortgagors, resided in one of the houses on the farm, and with lier daughters and minor children cultivated a pait thereof. Her said three sons, likewise, dwelt there with their families, conducting farming operations, renting to tenants and running the mill situated on the place. They claimed and represented that the property belonged entirely to them, and that it was free from any lien or incumbrance. On the 9th day of December, 1891, the mother, her husband being then dead, filed her bill t.o enforce an alleged vendor’s lien, which she claimed to have on the land, as the transferee from her husband, of certain purchase money notes of even date with his deeds, executed by the sons, and amounting to six thousand dollars. She asserted priority over the mortgage to the defendant, and the controversy here is between these two claimants. The chancellor decided against the complainant, and she appeals.

It is clearly shown that the mortgagee had no actual notice or knowledge of the supposed vendor’s lien ; and the sole contention of appellant is, that she had such possession of the lands as to charge the appellee with constructive notice of her equitable rights. It is, undoubtedly, true, that a possession, which contains the elements required by the rule, will operate as notice of the occupant’s equitable rights, and we have often so decided.—Carter Bros. v. Challen, 83 Ala. 135; Phillips v. Costley, 40 Ala. 486; Garrett v. Lyle, 27 Ala. 586. But to constitute notice the possession must be open, visible, exclusive, and inconsistent with the legal title.—Smith v. Jackson, 76 Ill. 254; Boyce v. McCulloch, 3 Watts & *631Serg. 429; s. c. 39 Am. Dec. 35; Bell v. Twilight, 18 N. H. 159; s. c. 45 Am. Dec, 367; Townsend v. Little, 109 U. S. 504, 16 Am. & Eng. Encyc. of Law, 800-803. “What makes inquiry a duty is such a visible state of things as is inconsistent with a perfect right in him who proposes to sell.”—Meehan v. Williams, 48 Pa. St. 238. “Where the vendor is in the apparent possession, the subsequent purchaser finding the title of record in the vendor is put on no further inquiry, because the possession appears to be according to the legal title, and if at the time another person is also in possession there is no presumption of title in him, inconsistent with that found in the vendor.”—Smith v. Yule, 31 Cal. 180; s. c. 89 Am. Dec. 167. This principle is recognized in McCarthy v. Nicrosi, 72 Ala. 332, and is well illustrated in Billington v. Welsh, 5 Binn. 129; s. c. 6 Am. Dec. 406. In discussing and allowing possession as constructive notice, the courts lay quite as much stress upon the fact that the vendor or mortgagor is out, as that the claimant of the equity or unrecorded legal right is in, possession. In this case, an insuperable difficulty in the way of appellant arises from the want of the essential element of exclusiveness in her holding. Although she may have had a sort of possession or occupancy, that of her sons, the mortgagors, was of much more decided character. A clear unincumbered record title was found in them ; they were in the apparent and open possession of the property, under claim of entire ownership; and the mere fact that their widowed mother, who was in a measure under their care and protection, resided on the place and cultivated á portion of the land, would not suggest to an intending purchaser, inspecting the property, that she had any secret, legal or equitable claim in hostility to her sons, and, hence, would not charge the mortgagee with constructive notice of her asserted vendor’s lien, under a supposed transfer from her husband.—Hanrick v. Thompson, 9 Ala. 409.

In this view, it is unnecessary to consider whether or not, in reality, the appellant had a bona fide claim for purchase money.

This disposes of the only ground, upon which we are asked to reverse the chancellor’s decree, and we have only to declare that it must be affirmed,

Affirmed.