126 Ala. 116 | Ala. | 1899
Tlie complainant claims to derive title to the land in dispute through a mortga'ge executed by Thad. M. Walker and wife, to him, in 1879, and a paper writing executed by Wm. F. Walker contemporaneously .with the mortgage, in which Wm. F. consented to his brother, Thad. M., executing the mortgage upon it. The mortgage was recorded, but the agreement was not. The legal title to this land was in Wm. P., and not in Thad. M. This is the averment of the bill and the proof sustains it.
In 1882 Mrs. Mary A. Smith went into possession of the land under contract of purchase or exchange, which was evinced by a deed made to her in 188G, by Wm. F. Walker, and remained in and continued in uninterrupted possession of it, claiming it as her own, until 1S95, when she was illegally dispossessed by the sheriff, acting under a writ of assistance issued out of the chancery court in a foreclosure proceeding, when the mortgage given by Thad. M. Walker to this complainant was foreclosed upon this, and other lands. She was neither a party or privy of any party to that cause. Her possession was derived from Wm. F. Walker, who had the legal title, and’from whom she acquired that title by deed several years prior to the institution of that suit.—Johnson & Seats v. Smith, 70 Ala. 108; Hooper v. Yonge, 69 Ala. 484; Thompson v. Campbell, 57 Ala. 183. She became the absolute owner of the lands by the acquisition of the legal title, unless she had notice, actual or constructive, of the outstanding equity which the complainant seek» to enforce, at the date of her purchase.
The complainant introduces some testimony tending to show that her husband, who acted for her in the transaction by which she became the owner of the land, knew of the agreement made by Wm. F. Walker, her grantor, with him. This, however, is denied by Smith, the husband. But whatever may have been his information as to the agreement, his principal, Mrs. Smith, was not bound by it, he having acquired it, if at all, many years prior to the purchase by her.—Central of Ga. Ry. Co. v. Joseph, 125 Ala. 313, and authorities cited therein. And
But it might very well 'be conceded that she had notice of it, and yet her title would be indefeasible under proof of her plea of adATerse possession, unless it A\ras .shoAvn that she held in subordination to the complainant’s claim of title. On this point the complainant testified that Smith, .the husband, on several occasions admitted to him that his Avife held the lands subject to his mortgage. Again he is contradicted by Smith. These admissions or declarations by Smith, if made, Avere not binding upon his Avife, not shown to have been made within .the scope of his authority as her agent. However, on this point AAre are prepared to give credence to Smith’s testimony, for the reason that he is strongly corroborated by .the recitals of a deed executed by his wife to the complainant o.n the 28.th .day of March, 1887, in which she conveyed to the complainant all the coal, iron and other minerals on the land, in controversy for -a valuable consideration. The acceptance by him from her of this deed about the time he says Smith was making acknoAvledgments to him of his superior title to the lands and the payment by him to her for privileges and rights to be.exercised by him upon his oaati lands, is not compatible with his testimony.
So, then, Mrs. Smith’s title was an absolute one and ■superior to the claim of the complainant Avhen viewed from either standpoint. There is no error in the record and the decree of the court below is affirmed.
Affirmed.
