Burt v. Cassety

12 Ala. 734

• Court: Supreme Court of Alabama
• Decided: January 15, 1848
• Status: Published

Opinion

ORMOND, J.

The merits of this case lie in a very narrow compass, and will require but a brief consideration. It is, as admitted by the chancellor, clearly shown by the proof, that the complainant purchased the land in question from her son, who then held the legal title by conveyance from one Robertson. That she paid the purchase money, and was put in possession, which she has retained ever since. It is also proved, that the son conveyed the land to his mother by deed. O. E. Burt, the son, states in his deposition, that by his direction, W. H. Estill, an attorney at law, drew the deed, which he executed, and left with Estill to have it recorded. Estill on his examination, says, that the deed may have been left with him; but he thinks it was handed to the vendor, to be carried to the clerk’s office for registration. In our judgment, these facts clearly establish a delivery of the deed to the complainant. It is of no importance whatever, that the vendee was not present when the deed was made. She is presumed to assent to it, as it is for her benefit. When the deed was executed, the vendor states he left it withEstill to be handed to the clerk for registration. Estill thinks, the vendor after its execution, took it himself for the purpose of having it registered. In either aspect it was a delivery of the deed, and the title of the vendee, as against the vendor, became perfect.

The deed was never recorded, and was therefore inoperative, as against subsequent purchasers, and creditors without notice. Actual notice of the execution of the deed, is not brought home to the creditor, who subsequently obtained a judgment against the vendor; but the possession by the ven-dee, of the land, and the exercise of ownership over it by her, is an implied notice, quite as effectual as the implied notice from a registry of the deed, and as potent in its effects as an actual notice of the existence of the deed, before the judgment was obtained.

Our registry acts place creditors, and subsequent purchasers, upon the same footing, as to unregistered deeds; but the term creditor in the statute, does not mean creditors at large of the grantor, but such creditors as by obtaining a judgment against him, have acquired a lien, without notice of the existence of the deed, either express or implied. [Ohio Life Insurance & Trust Co. v. Ledyard, 8 Ala. 866; Daniel v. Sorrelles, 9 Id. 436.] That possession by the ven-dee, is constructive notice of the conveyance, so as to defeat a subsequent purchaser, and prevent the judgment creditor from obtaining a lien. [See Smith v. Zurcher, 9 Alabama Rep. 208; Hanrick and Powell v. Thompson, Id. 409; Farnsworth v. Childs, 4 Mass. 641; Priest v. Rice, 1 Pick. 164.]

It results from this view, that as the judgment creditor had, by the possession of the complainant, constructive notice of her title, he acquired no lien upon the land, in virtue of his judgment.

It is not necessary to consider, whether it would make any difference whatever, if the title of the complainant was merely equitable. It is perfectly clear it would make no difference in the case of a subsequent purchaser, who-would be as much affected with notice of an equitable, as of a legal title. [Clay v. Moore, 7 Ala. 742; Williamson v. Branch Bank at Mobile, Id. 920.] And as already observed, purchasers and creditors, are by our registration acts, placed on the same footing.

There was however, no pretence for making Raiford, and Walker parties to the bill. Their whole offence consisted in having obtained a judgment against Oswell B. Burt, but they did not attempt to levy it upon this land, or claim a lien upon it. As to them the bill was properly dismissed.

The objection that the court had not jurisdiction, because the legal title was in the complainant, and she could have successfully defended at law, is not tenable. The established doctrine of this and other courts is, that a party may go 'into equity, to remove a cloud which hangs over his title, either by an actual or threatened sale of the land, as the property of another. This question was considered by us at length in Lyon v. Hunt, 11 Ala. Rep. 307, and see also, Pettit v. Sheppard, 5 Paige, 501.

We have not considered it necessary, or proper, to inquire into the propriety of the informal cross bill, as it exerts no influence whatever in the cause.

With the exception heretofore noticed, of the defendants Walker and Raiford, the decree must be reversed, and a decree be here entered, perpetually enjoing the defendant Cassety, from levying his judgment upon this land.