Watt v. Parsons

73 Ala. 202 | Ala. | 1882

STONE, J.

— The facts of this case are very simple and undisputed. Joseph Watt was the owner of the lands in controversy, extending back to a time more than twenty years ago. Between March, 1859, and February, 1862, he contracted debts and gave his note to Houghton, Allen & Co. In 1869, suit was brought on these notes, and in April, 1871, judgment was rendered thereon. Execution was issued thereon in May, 1871, and other executions were afterwards issued ; but they were not regularly kept up. A pluries execution was issued thereon, in October, 1879, and placed in the hands of the sheriff, who levied on the lands sued for. In April,. 1880, the lands were sold by the sheriff, purchased by the appellees, and a deed was made to them. Thereupon, they brought this suit to recover possession.

From the time Joseph Watt became the owner of the land, dating at a time before 1869, he, Eliza Ann Watt,-his wife, and Thomas M., and N. O. Watt, resided together thereon; and they have continued so to reside ever since, and were so residing together when the trial in this case was had. There has been no change of actual possession. Thomas M. Watt and N. O. Watt are sous of Joseph and "Eliza Ann Watt. In May, 1870, while the suit of Houghton, Allen & Go. against Joseph Watt was pending, the latter and his wife, on a recited consideration of one thousand dollars,"conveyed the lands to their sons, Thomas M. and N. O. Watt. As we have said, no change of possession attended this deed. In May, 1880, after the purchase by the appellees at sheriff’s sale, N. O. Watt conveyed his interest in the lands to Tomas M. Watt. The deed from Joseph Watt and wife to Thomas M. and N. O. Watt was not recorded until January, 1879, many years after the recovery of the judgment in the suit of Houghton, Allen & Co. against Joseph Watt; and there is no proof that the plaintiffs in that suit, or the purchasers at the sheriff’s sale, had any notice of the deed of Joseph Watt and wife to their two sons.

As there was no record of the conveyance by Joseph Watt to his sons, and no change of possession, this gave no notice, actual or constructive, that the title had passed out of Joseph Watt. — McCarthy v. Nicrosi, 72 Ala. 332.

In Wood v. Lake, 62 Ala. 489, we ruled, that an unrecorded deed was inoperative against a judgment creditor, “having no notice thereof.” . The argument in this cause assails the soundness of the construction then given of § 2166 of the Code of 1876. We have reviewed that opinion, and the argument we then made in support of it, and adhere to it.

Affirmed.