94 So. 573 | Ala. | 1922
The contest in equity is between a grantee and a mortgagee as to the superiority or initial right or title to standing timber.
The true date of execution and delivery of a mortgage may be shown by parol evidence (Formby v. Williams,
If it was the intention of respondents to make the contention that said mortgage gave a lien (Autauga Co. v. Chambliss,
Mr. Daniell says of the sufficiency of such an answer:
"It is, however, of great importance to the pleader, in preparing an answer, to bear in mind that, besides answering the plaintiff's case as made by the bill, he should state to the court, upon the answer, all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant ought to apprise the plaintiff, by his answer, of the nature of the case he intends to set up, and that, too, in a clear, unambiguous manner; and, in strictness, he cannot avail himself of any matter in defence which is not stated in his answer, even though it should appear in his evidence." 1 Daniell's Ch. Pl. Pr. (5th Ed.) star pages 712-713.
This rule is the subject of section 488 of Sims' Ch. Pr. p. 326.
Aside from the foregoing, the president of appellee (Lindsey Mill Company) testified that he was actively in charge of the affairs of that company, and had no knowledge or notice of Pake and Staples' claim or alleged equity until long after the purchase of the land by his company. That is to say, complainant proved that it was a purchaser for value, and therefore the burden of going forward with the evidence shifted to the respondents in original bill to prove notice (Brooks v. Griel Bros.,
"* * * 'That the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative, defensive matter in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. "Ei incumbit probatio qui dicit." This done, he need not go further, and prove he made such purchase and payment without notice. The burden here shifts, and if it be desired to avoid the effect of such purchase and payment, it must be met with counterproof that, before the payment, the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on inquiry, which, if followed up, would discover the equity or incumbrance.' Hodges v. Winston,
It has been declared that the open, notorious, and exclusive possession of real property by a vendee holding under an unrecorded conveyance, and claiming the land as owner, is constructive notice of his title; where, however, the possession of the vendor and vendee was joint at the time of the sale and conveyance, and the ambiguity is not *572
relieved by the vendee's subsequently vacating his occupancy, this rule would not obtain. McCarthy v. Nicrosi,
Under the pleading and proof, respondents in original bill (Pake and Staples) must rest their claim upon the mortgage of Dennis to them as of the date it bears (October 30, 1919), and complainant's claim rests upon its deed from Dennis to Lindsey Mill Company of date of October 20, 1919. The evidence shows that before October 20, 1919, said grantee was not in possession of the land, but that on the next day after the conveyance its president (the active head and management of the corporation) actually took possession of the land for the corporation, and it was in its open, notorious possession, proceeded with the construction of the sawmill, builded houses (commissary, blacksmith shop, and houses for employees), constructed a railroad or spur track, cutting timber and hauling logs to the mill. Such open, notorious, and visible acts of ownership in the timber standing on the land, was such notice of which it was susceptible to all the world of its possession and of the exercise of the right or claim of ownership by the vendee under the deed of date of October 20, 1919, and from that date.
In McMillan v. Aiken,
"Cessation of use of timber land in accordance with neighborhood custom and in conformity to some natural condition or agency making the custom necessary would not be an interruption of the user's possession if, when resumed, the use was connected with acts of possession which had gone before so as to become a part or continuation thereof, and not merely several occasional, desultory, or temporary acts of intermittent trespasses, so that, where the claimant of timber land at one time in the year deadened and cut trees thereon, and at another time in the year ran the timber off when there was a freshet, continuing these operations from year to year, possession was uninterrupted."
The possession of land essential to raise the duty of inquiry on the part of a purchaser is said to be "generally sufficient if it is such a visible possession as would naturally suggest inquiry upon the part of an ordinarily prudent person intending to purchase, though it must be open, notorious, and exclusive, as regards the purchaser's vendor, and, in consequence, unambiguous and unequivocal. O'Neal v. Prestwood,
The acts of possession of the complainant over the standing timber in question for the purposes of cutting and preparing the same for market were such evidences of its possession and claim of ownership as that subject was susceptible, and that such acts of ownership were sufficient to suggest and stir to an inquiry that would have led to a full knowledge of the facts upon the part of an ordinarily prudent person intending to purchase.
Moreover, there was evidence that one of respondents (Mr. Pake) had possession and knowledge of facts making due inquiry imperative — that called for inquiry, and everything to which inquiry would lead. Holly v. Dinkins,
We have carefully considered the evidence, and are of opinion that the decree of the circuit court, in equity, should be in all things affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.