Alexander v. Fountain

• Decision Date: 20 January 1916
• Docket Number: 6 Div. 241
• Citation: 70 So. 669,195 Ala. 3
• Parties: ALEXANDER v. FOUNTAIN et al.
• Court: Alabama Supreme Court

70 So. 669

195 Ala. 3

ALEXANDER v. FOUNTAIN et al.

6 Div. 241

Supreme Court of Alabama

January 20, 1916

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Ejectment by Milner Fountain and another against C.C. Alexander. Judgment for plaintiffs, and defendant appeals. Affirmed.

B.C Burkhart, of Birmingham, for appellant.

Gaston & Drennen, of Birmingham, for appellees.

MAYFIELD J.

This is an action of ejectment. There was a common source of title G.B. Mitchell. It appears without dispute that Jerry Fountain, the ancestor of plaintiff Milner Fountain, owned the land. It was sold as the property of Jerry Fountain under an execution sale of date December 15, 1902, at which sale G.B. Mitchell became the purchaser. On the 16th day of November, 1908, Mitchell conveyed by warranty deed to appellant, C.C. Alexander, which deed was duly recorded in the probate office of Jefferson county on the 14th day of December, 1908. This, of course, nothing else appearing would have placed the legal title in appellant, conceding everything to have been regular, and the common source to have had title. There was evidence, however, tending to show that Jerry Fountain redeemed the land from the execution sale, and that G.B. Mitchell quitclaimed to Jerry Fountain before he conveyed by warranty to appellant. But this quitclaim deed was not filed for record until after Mitchell had conveyed by warranty deed to appellant.

The real and only disputed issue in the case was whether or not appellant had actual knowledge of the fact that Jerry Fountain had redeemed the land, and that Mitchell had quitclaimed to him, when Mitchell conveyed by warranty deed to appellant.

Unless the quitclaim deed was a forgery, it passed the title out of Mitchell before he conveyed to appellant, so far as the parties to the quitclaim deed were concerned. The quitclaim deed, however, not being recorded as required by the statute (Code 1907, § 3383), was void as against purchasers for a valuable consideration, mortgagees, and judgment creditors without notice.

There is no doubt that appellant was such a purchaser for a valuable consideration, but was he "without notice"? The evidence on this subject was in dispute, and the jury found that he did have notice, or that he was chargeable therewith.

From the earliest decisions of this court construing unrecorded conveyances void as to "purchasers without notice," etc., it has been held that actual notice is equivalent to the constructive notice afforded by the registration of the conveyance. The whole object and design of the statute is said to be to give notice of the existence of the conveyance. Ohio Life Ins. Co. v. Ledyard, 8 Ala. 871; Gamble v. Black Warrior Coal Co., 172 Ala. 672, 55 So. 190; 7 Mayf.Dig. 789.

It has likewise been repeatedly held that, where one is in possession of the premises, the purchaser of such premises is charged with an implied notice of the nature of his title. Daniel v. Sorrells, 9 Ala. 440; Gamble v. Black Warrior Coal Co., 172 Ala. 672, 55 So. 190; 7 Mayf.Dig. 789.

It is equally well settled law in this state that whatever is sufficient to put a party on inquiry is enough to charge him with notice. Means of knowledge may be equivalent to knowledge. Whatever is sufficient to put one on his guard and call for inquiry is notice of everything to which the inquiry would lead. Cole's Case, 143 Ala. 427, 39 So. 403; Pepper v. George, 51 Ala. 194; Gamble v. Black Warrior Coal Co., 172 Ala. 672, 55 So. 190; 7 Mayf.Dig. 789.

There was therefore no error in receiving proof tending to show notice to appellant of the fact of the redemption and of the quitclaim deed, and that appellee was in possession of the land.

There was no error in allowing secondary proof of the quitclaim deed claimed to be lost. The loss or destruction of the original...