54 So. 272 | Ala. | 1910
Prom a final decree of the chancellor, rendered on a submission of the cause on the pleadings and proof, the present appeals, direct and cross, are taken. The Sloss-Sheffield Steel & Iron Company, hereinafter designated as the Sloss Company, was respondent in the original bill and the complainant in the cross-bill. L. W. Lollar was complainant in the original and respondent in the cross bill.
L. W. Lollar filed his bill under the statute (section 5443 et seq., of the Code of 1907) for the purpose of quieting title and compelling a determination of claims to the land described in the bill. The lands, the title and claims to which are sought to be quieted and determined, consist of the minerals in the following described land: S. W. % of S. E. %, section 22, and S.
Both parties claim title through a common source. It appears that some time prior to the year 1876 Edmund I. Adcock entered the land in question, it being United States government land, and died in possession of it, leaving surviving him his widow, K. E. Adcock, and three children — William Adcock, a son, and two daughters, F. A. Adcock and A. J. Adcock. The two daughters subsequently married, and are known in the record here as Mrs. F. A. Miller and Mrs. A. J. Holcomb; the latter sometimes called Mrs. Whitley, the husband’s name by her second marriage. The complainant, Lollar, claims title under deeds made to him by the three children, heirs at law of Edmund I. - Adcock, deceased, namely William Adcock, Mrs. F. A. Miller, and Mrs. A. J. Whitley, formerly Mrs. A. J. Holcomb, and which said deeds were executed in January, 1907, a month or two before the institution of this suit. The respondent, complainant in the cross-bill, claims under a deed from K. E. Adcock, William Adcock, F. A. Miller, and A. J. Holcomb to' Benjamin M. Long, of date January 14, 1878, and from said Long through a connected chain of title to itself.
The deed to Long of January 14, 1878, is attacked by the complainant, and its validity as a deed contested
The deed in question was attested by two witnesses, and there was also an acknowledgment taken before one D. P. Vickery, a notary public and ex officio justice of the peace, and, though irregular, certifying that “K. E. Adcock and her heirs, whose name is signed in the foregoing conveyance and who is known to me, acknowledged,” etc. This deed was filed for registration in the office of the probate judge of Walker county on the 4th day of June, 1897. The deed, when offered in evidence in this case, was more than 30 years old; but the question of its admissibility in evidence as an ancient document is of -no importance, as1 its execution was duly proven by each of the attesting witnesses, who testified in the case. It may be said, however, in passing, that its great age and coming from the proper custody, without any mark of suspicion attaching to it, in connection with the fact that Long and those claiming under him had looked after the land and paid taxes on it, “acts referable to the title,” as was said in White, McLane & Morris v. Farris, 124 Ala. 461, 27 South. 257, was sufficient to admit the deed in evidence upon the doctrine of ancient documents, with further proof of actual pos
The deed on its face is by Mrs. Adcock and “her heirs,” and it is contended that, as the parties signing it, other than Mrs. Adcock, are not named as grantors in the body, it is ineffectual to convey their title. While it is true that the body of the deed must show who are the grantors, the rule does not require the names of the grantors to be inserted in the body of the deed. The requirement of the rule is met if, from the deed in its entirety, enough is shown from which, by the aid of extrinsic evidence, the names of the grantors can be made certain. As was said in Madden v. Floyd, 69 Ala. 221: “The description is sufficiently certain if the identity of the party can be worked out through a proper application of the maxim, ‘Id certum est quod certum reddi protest.’” To the same effect is Jones v. Morris, 61 Ala. 518, wherein, quoting from Shaw v. Loud, 12 Mass. 447, it is said: “A deed made to the heirs at law of a deceased person is good, because the persons who are to take can be ascertained by extrinsic testimony.” It is evident that the words ccher heirs’’ as used in the deed in the present case, meant her children — was intended to designate her children. The living have no heirs — “non hseres est viventis.” The children of Mrs. Adcock signed the deed with her, which of itself shows what was understood by all of them in the use of the words “her heirs” as employed in the body of the deed. Applying the principle laid down in the above-cited cases of Madden v. Floyd and Jones v. Morris, we have no hesitancy in upholding the deed against this attack on its validity.
Was the deed signed in blank? This is an issue of fact, in which the burden of proof rests upon the attacking party. The testimony here is in conflict. The
In 16 Cyc. p. 1075, the principle is thus stated: “Upon proof of a fact so ancient as to suggest inherent difficulty in proving preliminary or attendant facts, all circumstances necessary to its legal validity will be assumed to exist.” In a case like the one under consideration, after so great a lapse of time, in order to overcome the reasonable presumptions to be indulged in favor of the due execution and genuineness of the deed, the evidence should be clear, satisfactory, and convine-
The three principal witnesses of the complainant to the transaction of the making of the deed, namely, William Adcock, Mrs. Miller, and Mrs. Holcomb, cannot be said to be free from the bias of interested parties, and how far this interest may have operated to influence their recollection of a transaction so long past no one can say. These witnesses themselves, in their testimony, are in conflict in some of the material particulars relating to the transaction. These three witnesses, however, all testify that the deed, when signed, was a blank deed. Opposed to this evidence is the testimony of Wilson and Oostlow, the two attesting witnesses to the deed. These two witnesses are wholly disinterested, and they each testify positively and unequivocally that the deed was not a blank deed when signed by the parties and attested by them, but was then just as it is now, excepting the marks of age upon it. The only dis
It is not disputed that Mrs. F. A. Miller, at the time she signed the deed,- was a married woman, and that her
But, it is insisted that, even should it be held that the Adcock heirs had estopped themselves from attacking the sale to Bailey made in 1876, and consummated by the execution of the deed to B. M. Long of January 14, 1878, the complainant, Lollar, would not be estop-ped, for the reason, as stated in argument by counsel, that he was a subsequent purchaser for value, without notice of the participation in the purchase money by his grantors. Aside from consideration of the question as to whether an estoppel is operative against one’s' privies, -whether bona fide purchasers for value and without notice, or not, which was left an open question in
We are of the opinion, and so hold, that the claim of the respondent, the Sloss-Sheffield Steel & Iron Company, both legal and equitable, in and to the mineral interests in question, is superior to that of the complainant Lollar.
The learned chancellor, upon the hearing of the cause, reached the conclusion, as stated by him in opinion, copied in the record, accompanying his decree, “that
The bill is filed under the statute and contains all of the essential averments of a statutory bill. The statute prescribes what the answer of a defendant claiming an interest shall specify and set forth. The answer in the present case, pursuant to the statute, specifically sets forth the defendant’s title and claim, and the manner and the sources through which the same was derived or created. Section 5446 then, among other things, provides that the court shall, “upon such consideration and •determination, finally adjudge and decree whether the defendant has any right, title,” etc., “and what such right, title,” etc., “is,” and that “such decree is binding and conclusive upon all the parties to the suit.” Under the statute, the defendant, on its answer, apart from the cross-bill feature, having established its prior right or title, was entitled to have its title and claim determined and adjudged by the decree of the court.—Collier v. Alexander, 138 Ala. 245, 36 South. 367.
Recognizing the rule that an original bill to remove cloud from title, without actual possession of the land in the complainant, is wanting in equity and cannot be maintained, we are of the opinion that the rule does not extend to cross-bills in a statutory bill of the char
Here the complainant invited the respondent into court for the purpose of having their controversy determined and settled, and the title to the land quieted. The relief asked in the cross-bill was affirmative, and under our decisions, in a statutory bill of this character, in order to obtain such relief a cross-bill with appropriate averments was necessary. In O’Neal v. Prestwood, 153 Ala. 443, 45 South. 251, the precise question we have here is decided. The bill in that case was filed under the statute to quiet title, and the defendants made their answers cross-bills. In that case the land in controversy was, as found by the court, uninclosed, “in the nature of a common, in the outskirts of Andalusia, which on the record was in the actual possession of no one.” It was said by this court, speaking through McClellan, J.: “The issue, then, as respects the possession at the time the bills were filed, is one of title, which draws to it'the constructive possession of the real estate in question. In other words, title is the inquiry which, when determined will cast the cause.”
Such is the case we have before us, and in the cited case this court granted the identical relief prayed by the cross-bill in this case; that is, the court canceled the conveyances under which the complainants claimed as clouds upon the respondents’ title. That case, as an authority, is conclusive of this one on the immediate question under consideration.
As the conclusion reached by us is a. final determination of the controversy between the parties, it becomes unnecessary to consider other questions in the case argued by counsel, and we therefore refrain from any discussion of them.
Reversed and rendered.