Tutwiler v. Montgomery, 73 Ala. 263

Tutwiler v. Montgomery

73 Ala. 263 | Ala. | 1882

BMCKELL, C. J.

— The purpose of statutes of registration is the protection of innocent purchasers and creditors against secret or unknown conveyances, and it is only as to them unregistered conveyances are avoided. As between the parties, and as to all others than the creditors or purchasers designated in the statute, unregistered conveyances are valid and operative. The statutes, prior to the Code, pronounced an unregistered conveyance of laud, whether absolute or conditional, void as to subsequent purchasers for value, mortgagees, 'and creditors, not having notice of it. The general term creditors was employed, but the term was not construed to embrace creditors at large, who had not reduced their demand to judgment, or otherwise acquired a lien. It comprehended only judgment creditors, or creditors who had by legal or equitable process acquired a lien, and had a consequent right to enforce the appropriation of the lands to the payment of their debts. — 1 Brick. Dig. 546, § 241. The term creditors, having this well defined and known signification, was omitted from the sections of the Code referring to the registration of conveyances of lands, and for it is substituted the term judgment creditorsy *268though the statutes giving to judgments a lien on lands were omitted. The consequence is, that the only class of creditors now protected by the statutes against unregistered conveyances of lands, whether absolute or conditional, are judgment creditors, and they are protected though they may not have acquired a lien by the issue of execution.— Wood v. Lake, 62 Ala. 489. Whether the plaintiffs in the execution under which the premises in controversy were sold, can be regarded as judgment creditors, entitled to protection against the conveyance under which the appellees derive title, and which was not registered at the time a lien was acquired by the issue of executions, is a grave question which we do not find it necessary now to decide. — Smith v. Jackson, 56 Ala. 25.

Notice is as effectual as registration to render a conveyance valid and operative as against creditors, purchasers, or mortgagees ; for it is only to afford notice that registration is required. The notice may be actual or constructive; and the possession of a grantee in an unregistered conveyance, by himself or his tenants, operates as notice, because it is a fact, a visible sign of ownership, which would put a prudent man upon inquiry as to the right in which it is claimed. — 1 Prick. Dig. 546, § 243. In Harris v. Carter, 3 Stew. 238, it is said: “When one purchases real estate under circumstances which should put him upon inquiry as to the title of him whose interest he purchases, he stands in the same situation as if he had actual notice of any incumbrance upon it, or of any transfer of right.” A purchaser at sheriff’s sale of lands of which the defendant in execution was not in possession, was held chargeable with notice of the equities and rights of the party having possession. In Morgan v. Morgan, 3 Stew. 383, it was said, that possession of lands is a fact which should put every man, ordinarily cautions, upon inquiry as to the title. In Fenno v. Sayre, 3 Ala. 471, it was said by C. J. Collier, that “possession is a fact, which should induce one to inquire whether the possessor has title, and if he has incumbered it. It gives to one proposing to purchase sufficient information to enable him to examine understandingly into the state of the title; and whether the purchaser prosecuted the inquiry or not, he is chargeable with notice.” In Scroggins v. McDougald, 8 Ala. 384, it was said by Goldthwaite, Í.: “It is laid down very generally in the books, that whatever is sufficient to put the purchaser upon inquiry, is good constructive notice. It is difficult to conceive what circumstance can be more strong to' induce inquiry, than the fact that the vendor is out of possession and another is in. ..... In the American courts, the rule is very generally recognized, that if a vendee is in possession of lands, a subsequent purchaser or mortgagee has constructive notice of his *269equitable right.” In Powell v. Allred, 11 Ala. 318, the possession of a mere intruder was declared to be a fact which ought to put a judgment creditor and a purchaser at sheriff’s sale upon inquiry, and would charge them with notice of an unregistered conveyance made by the judgment debtor. In all our decisions upon the question, the possession of lands is regarded as constructive notice of the right, title, or equity of the party in whom it resides. If it is taken and held under an unrecorded conveyance of the legal estate, it is regarded as the equivalent of registration, supplies its absence, and renders the conveyance valid and operative as against creditors, or' purchasers, or mortgagees. — Brunson & Wife v. Brooks, 68 Ala. 248; Burt v. Cassety, 12 Ala. 734; McCaskle v. Amarine, Ib. 17; Smith v. Zurcher, 9 Ala. 208; Strickland v. Nance, 19 Ala. 233. The defendant in execution never was in possession of the lands — the possession was through tenants leasing from him, until he made the conveyance under which the appellees claim title. ■ These tenants immediately attorned to the grantees, and, on the expiration of the term for which they had leased, entered into a new lease for another term, before-the issue of the execution against the grantor. The possession was open, visible, unequivocal, and it is difficult to conceive a fact better calculated to put a party having an interest upon inquiry, than the want of actual possession in his vendor or debtor, and the enjoyment of possession by others. If inquiry had been made, there is no room for doubt that it would have led to full information of the state of the title. The plaintiffs in execution and the appellant stand in the situation of parties who had knowledge or information of a fact which ought to have elicited inquiry, and must be deemed to have notice of all facts to which inquiry, if they had pursued it, would have led them. — Powell v. Allred, supra; Scroggins v. McDougald, supra.

We know that by the common law livery of seizin was essential to the creation of freehold estates in lands. The livery was simply an open, public, notorious transmutation of the possession, and possession then became a visible sign of ownership, and yet remains prima facie evidence of a legal estate which will support ejectment against all who can not show a better and higher evidence of title. — Badger v. Lyon, 7 Ala. 564. A purchaser of an unquestioned legal estate, if he would protect himself against equities or trusts to which it is subject, must not only plead and prove that he paid value, but also that his vendor was in possession claiming to be seized of the legal estate. The want of possession in the vendor is as fatal to his plea for protection, as the absence of a valuable consideration, or a denial of notice. — Moore v. Clay, 7 Ala. 742; Daniels v. *270Davison, 16 Vesey, 252; Jackson v. Rowe, 4 Russell, 514. •Neither a purchaser, nor a creditor can affirm that, with just confidence, he acquired title to, or a lien upon lauds, of which his vendor or debtor had not possession. The want of possession is a fact which must excite inquiry, especially when the title he claims entitles him to immediate possession. We do not pause to inquire whether our former decisions have not attached to the want of actual possession in a vendor, or in a judgment debtor, a higher importance than is attached to it elsewhere. That may be true, but, as was observed by Dargan C. J., in Strickland v. Nance, 19 Ala. 233, they affect titles to property, and we must adhere to them, though he was not satisfied with the reasoning upon which they rest. The want of possession in the defendant in execution, under whom the appellant deduces title, urns a fact which ought to have put him on inquiry. If he did not make inquiry, his negligence can not entitle him to claim protection against the title of the appellees, of which inquiry would have- given information.

We do not perceive any error in the rulings of the circuit court, and the judgment must be affirmed.