Powell v. Allred

11 Ala. 318 | Ala. | 1847

GOLDTHWAITE, J.

In Daniel v. Sorrells, 9 Ala. Rep. 436, the precise question decided was, that the title of the sheriff’s vendee was superior to that of a previous purchaser from the judgment debtor in consequence of the neglect to register his deed within six months from its execution, or before the judgment lien attached. We also held, that notice to the sheriff’s vendee of the previous deed from the debtor, did not render his title defective, as it was not shown the creditor himself had notice. We arrived at the conclusion, that a creditor was as much within the protection of the registration acts as a purchaser, not because unregistered deeds are expressly declared void as to creditors, but because the later enactments speak of creditors and purchasers as having the same rights, though the object of those enactments was chiefly to open the time for registration. To carry construction further, and hold that creditors are placed on a different footing than purchasers, would in our judgment be without warrant.

In the case before us now, it will be seen the judgment debtor, some six years before the judgment was rendered, had sold the land in question and parted with the occupancy; after this, the land was held under his deed for some four or five years. The deed however was never registered, nol-is it shown that those in possession at the time of the judgment or of the sale under it, are connected with title made by the unregistered deed, although at both these periods the land was occupied by persons having no connection with the judgment debtor. The question is, are these circumstances, or any of them, constructive notice to the plaintiff of the unregistered deed.

We have previously said that there was no warrant by our statutes to put creditors on a different footing from purchasers, and it is such of the latter only as are so bona fide and without notice, that the statute protects. Actual notice is not pretended, but the settled law of this, as of most other courts, that possession under the unregistered deed, is constructive notice sufficient to satisfy the terms of the statutes. [Scroggins v. McDougald, 8 Ala. Rep. 381, and cases there cited.]

It does not appear in this case that possession was held under the unregistered deed, though it is clear it was not held under the judgment debtor. The fair inference is, the party in possession was a mere intruder on the estate of Mrs. Harrison; and thus the question is narrowed to the inquiry whether such a possession is notice to the plaintiff, whether we consider his rights as a judgment creditor, or as a bona fide purchaser under the judgment debtor, through the medium of the sheriff’s sale.

We have been unable to find any decision bearing directly on this point, but on principle, we cannot perceive why the possession of a mere trespasser will invest a judgment creditor with rights, which he could not have if the purchaser under the unregistered deed had retained possession. If the present defendant has wrongfully entered, why should that produce the effect to defeat the title of Mrs. Harrison ? It is impossible for the most vigilant owner of lands, if he resides at a distance from them, to prevent the unauthorized intrusion of others, and it would be a most severe penalty, if his omission of vigilance could enable the creditor of a former owner to take advantage of this to sell the land. So, too, the circumstance that a judgment is obtained and the land sold during the continuance of such an intrusion, cannot in our judgment invest the creditor or purchaser with other rights than he would have against the rightful possessor. It is the well settled rule of the English courts as well as our own, that possession out of the vendor and held by another is' sufficient to put,a purchaser on the inquiry. When he has sufficient information to lead him to a fact, he shall be deemed to know such fact. [Atkinson on Marketable Titles, 573; Morgan v. Morgan, 3 Stew. 383; Scroggin v. McDougald, 8 Ala. Rep. 381.] If inquiry had been made of the person in possession, it is highly improbable it would have resulted in any thing but complete information; and, although the rule just referred to is usually stated in connection with tenancies and equitable titles, we do not doubt its application to all cases where there is an actual possession held by any other person than his whose title is purchased, even if that possession is by-a mere intruder.

The statutes of registration were intended to prevent dona fide creditors and purchasers from being injured by secret conveyances not discoverable by the exercise of ordinary diligence ; but to extend them so as to authorize either creditor ■ or purchaser to shelter himself, under the pretence of having been deceived, when the person whose title he claims to have changed by a lien, or from whom he purchases, has been out of possession for more than thirteen years, and when, during all that time, the land has been possessed by others not claiming a title for him, would in our judgment be repugnant to the principles which produced these enactments.

We think there was no error in the ruling of the circuit court. Judgment affirmed.