Bodenheimer v. Chesson

111 Ala. 539

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

HEAD, J.

It is unnecessary to discuss this casein detail. There is no conflict whatever in the evidence,that James F. Chesson, the original owner, in possesion of the land sued for, and his wife, for valuable consideration, conveyed the- land by deed of bargain and sale, in fee, to A. J. and B. N. Chesson, who purchased, parted with the consideration, and received the deed without notice' of the prior unrecorded deed of gift made by their grantors to the plaintiffs of a remainder in the land, dependent upon a life estate reserved to the grantor, James P. Chesson. The execution, loss, and contents of the deed to A. J. and B. N. Chesson were established with- ■ out conflict in the evidence, or room for an adverse inference, and the purchasers offered no evidence tending to show that either of them had any notice of the prior deed to plaintiffs. Moreover, they, the purchasers, both testified they had no such notice. In pleading, a party setting up a subsequent purchase must, as essential elements of his case, aver payment of a valuable consideration without notice of the right or equity alleged against him, but it is the universal rule, founded in manifest reason and justice, that he is not required to prove the negative— want of notice. The affirmative fact of notice must be proven by the opposite party. The same rule prevails in the law merchant, and in every judicial relation of which we are aware. The defendants connect themselves with the title so acquired, and the court ' ought to have given the general charge in their behalf, as requested.

Reversed and remanded.