120 Ala. 475 | Ala. | 1898
The bill in this case was filed by the appellee under the act of December 10, 1892, (Acts of 1892—93, p. 42), entitled an act “to compel the determination of claims to real estate in certain cases and to quiet the title to the same,” and which now constitutes Article 13, Chap. 16 of Code of 1896, page 313. The bill contains the requisite averments under the statute. Some of the respondents are adults, and others minors, who are represented by guardian ad litem. All of the
The evidence in the case discloses the following facts pertinent to the questions presented by the record for our consideration : Sarah Sheridan, the mother of respondent Catherine (Kate) Martin, Sr., and grandmother of the other respondents, was seized and possessed of the real estate in dispute, consisting of a house and lot in the city of Mobile. The said Sarah died on December 12th, 1884, leaving a last will and testament. In said will she devised said lot to her son Bernard Sheridan, the father of the Sheridan respondents in this bill, during his natural life and to his children forever after his death. The will also provided that “should he have no children at the hour of his death,” said lot should go to her, said Sarah’s, daughter, Kate Martin and her children forever. This will was recorded on December 26th, 1884, in the book of miscellaneous records in the probate office-of Mobile county, but was not probated until April 9th, 1895. That Bernard Sheridan, the son of said Sarah, occupied said lot continuously from 1884 to January, 1896, when complainant went into possession of same. A short time prior to October 1st, 1892, the said Bernard Sheridan engaged one John Case to negotiate for him a loan on said lot, and to assist said Case, Bernard had one Francis Kiernan to make out an abstract of his title to the lot. On this abstract the said will was not noted. The will had not been probated, and no administration had been had on the estate of said Sarah. Said Sarah left surviving her three children, the said Bernard Sheridan, Catherine Martin, and Thomas Sheridan, her only heirs at law. On October 1st, 1892, Catherine Martin joining with her husband, and Thomas Sheridan with his wife, made and executed
"May 6th, 1895. Since this mortgage was executed a will has been found, and has been regularly probated. The existence of this will was unknown to mortgagor when mortgage was executed. It is my opinion that the fee simple title is in the children of mortgagor, and not in the mortgagors themselves.”
[Signed] "Guy C. Sibley.”
On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree for the complainant, decreeing her the relief prayed for in her bill. This decree is now assigned as error.
It is a plain proposition of law, that if Mariah Kuhl, the mortgagee, got a good title to the lot in question under her mortgage, then the purchaser at the mortgage sale succeeded to that title unaffected by the notice given at said mortgage sale. It is, however, contended on behalf of appellants, that the record of the will of Sarah Sheridan was under the statute constructive notice of its contents, and for that reason the title acquired by the mortgagee under the mortgage, as well as those holding under her, was subordinate to the interest and claims of the appellants, which they had as devisees un
Sections 1008, 1012 and 4279 of the Code of 1896, which are the same as sections 1814, 1817 and 1982 of of Code of 1886, are the only statutes we have relating to the recording of wills. It becomes then a material inquiry in this case, as to when a will may be deemed recorded under section 1008, so as to prevent its being inoperative as against the persons and under the conditions named in the statute. It is said in Desribes v. Wilmer, 69 Ala. 25: “An instrument testamentary in its character cannot be recognized as valid in any form
Section 1008 does not in terms authorize the registration or record of wills and conveyances ; it simply provides that unless recorded within five years from the entry and possession of the life tenanc, such wills or conveyances are inoperative as against the creditors of the tenant for life in possession. There are other statutes, which in express terms authorize the registration of certain conveyances. While technically speaking a will may be a conveyance, our statutes relating to the registration and record of wills and conveyances seem to preserve an evident distinction between the two. The only statute then that we have which would authorize the recording of a will is section 4279 (Code of 1886, § 1982). And under this section a will is not authorized to be recorded until it has been probated. Construing these several sections in pari materia, we are constrained to hold that a will is not such an instrument, the recording of which; under our registration statutes, would operate to give constructive notice, before probate of the same.
The mortgagor Bernard Sheridan, the life tenant under the will, having been in possession of the lot for more than five years, the said will not having been probated and recorded as provided and authorized by the statute within the five years, the mortgagee, Mrs. Kuhl, being without actual notice of the existence of the will, comes within the protecting provision of section 1008 of the Code. The title to the lot she thus acquired under her mortgage is freed from the incumbrance of the claims of the respondents as remaindermen under the will.
It is insisted that the chancellor erred in not excluding, on appellants’ objection and motion, the mortgage of Mrs. Kuhl and her deed to the appellee, Mrs. Schimpf; the ground of the objection and motion being that the mortgage and deed were not relevant under the issues in the case. The defendants in their answers to the bill set up-a claim to the lot in question, setting forth and specifying their claim or title under the will of Sarah Sheridan, and further averred in their answer that complainant had notice of such will, and of the interest
"We find no error in the decree of the chancery court, and the same is affirmed.