Marshall v. Lister

71 So. 411, 195 Ala. 591, 1916 Ala. LEXIS 342

Opinions

ANDERSON, C. J.

(1) It may be conceded only for the purpose of deciding this case that the land in question was bought with the complainant’s money by her husband, who took the deed in his own name, and that there was therefore a resulting trust in favor of the wife, this appellant; yet this trust was inoperative and void as against the judgment lien of M. Starnes, doing business in the name of the New South Rubber Tire Company, which said judgment was obtained and certified to the probate office before the registration of the deed from the husband, P. W. Marshall, to his wife, this appellant, and there is no proof in this record of notice to the said M. Starnes of the existence of the equity attempted to be enforced by the original bill of complaint. — Section 3413 of the Code of 1907; Preston v. McMillan, 59 Ala. 84; John Silvey Co. v. Cook, 191 Ala. 228, 68 South. 37.

The appellant contends that the possession of the land by the husband, or of the husband and wife jointly, will be referred to the wife, or to the husband’s representative capacity, and that such a possession is equivalent to notice of said equity. This contention finds support in the case of Robison v. Robison, 44 Ala. 227, but this case is in direct conflict with the latter case of Preston v. McMillan, 58 Ala. 84, and is out of line with many of the decisions of this court, and is not sustained by the authorities there cited. The correct rule is that, when husband and. wife live together on land — that is, have a community of possession — the possession will be referred to the one who has the legal title, and which was not only in the husband in the case at bar, but his deed was upon the records of the county. — Anglin v. Thomas, 142 Ala. 264, 37 South. 784; Larkin v. Baty, 111 Ala. 303, 18 South. 666, and cases cited.

The case of Gwynn v. Hamilton, 29 Ala. 233, cited in the Robison Case, supra, does not support the holding in said Robison Case in point or by analogy. The other case cited, Michan and Wife v. Wyatt, 21 Ala. 813, is opposed to the holding in said Robison Case. There the wife, and not the husband, had the title, and it was said in the opinion: “In such case the possession will be referred to the title and the husband will be regarded as the trustee for the wife.”

The Robison Case, supra, has been, in effect, overruled by the decisions of this court, but in order to remove all doubt in the future as to the soundness of same upon the point at issue it is hereby expressly overruled.

We do not think that the chancery court committed reversible error in not sustaining the complainant’s objection to proof of the exhibits to the answer and cross-bill.

The decree of the chancery court is affirmed.

Affirmed.

All the Justices concur.