Robertson v. Durden

89 Ala. 500

Opinion

STONE, C. J.

When Mrs. Durden' recovered her judgment against William J. Robertson and Charles E. Robertson, June 16, 1887, Wm. J. was in possession of the land in controversy. It was not shown that Charles E. ever was in possession, or that any actual control over the land had been asserted for or in the name of Mrs. Chloe E. Robertson, until the lease to Yarner was executed, January 17, 1888— seven months after Mrs. Durden’s judgment was recovered. There is nothing decided in the case of Brunson v. Brooks, 68 Ala. 248, which can benefit Mrs. Chloe Robertson in this suit.

The appellant, Mrs. Chloe L. Robertson, derived all the title she has to the lands in controversy under the deed of her husband, Charles E., dated April 18, 1887. It is not, and can not be denied, that Chas. E. had become the owner of the land under the will of his mother. Being its owner, the land was liable to Mrs. Durden’s judgment, unless the title had passed out of him before her lien attached. The deed of appellant not being recorded, nor filed for record, until May 5, 1888, was inoperative, and constructively fraudulent as against Mrs. Durden’s judgment, recovered more than ten months before. — Wood v. Lake, 62 Ala. 489; Watt v. Parsons, 73 Ala. 202; Tutwiler v. Montgomery, Ib. 263.

Affirmed.