Behan v. Friedman

• Decision Date: 08 November 1928
• Docket Number: 6 Div. 111
• Citation: 218 Ala. 513,119 So. 20
• Parties: BEHAN et al. v. FRIEDMAN et al.
• Court: Alabama Supreme Court

119 So. 20

218 Ala. 513

BEHAN et al. v. FRIEDMAN et al.

6 Div. 111

Supreme Court of Alabama

November 8, 1928

Rehearing Denied Dec. 20, 1928

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Bill to quiet title by Samuel Friedman and others against W.J. Behan and others. From a decree for complainants, respondents appeal. Affirmed.

Garber & Garber, W.H. Smith, and R.D. Gilliam, Jr., all of Birmingham, for appellants.

Arthur Fite, of Jasper, for appellees.

BOULDIN J.

This is a statutory bill to quiet title to the mineral interest in real estate.

Complainants and respondents claim through Charlotte Price, as a common source of title. Prior to 1883 she owned the absolute title. On November 20, 1883, she conveyed the mineral interest to Musgrove Brothers by warranty deed. This deed was never recorded, however, until March 1st, 1887.

Meantime on January 17, 1887, Mrs. Price conveyed to Friedman &amp Loveman by warranty deed, an absolute title in fee simple not excepting the mineral interest. Complainants claim through Friedman & Loveman and respondents through Musgrove Brothers. The deed to Friedman & Loveman recited a cash consideration of $1,200, and complainants' adduced evidence of payment thereof.

This cast upon the respondents the burden of proof as to notice of the dormant conveyance to Musgrove Brothers at the time of the conveyance to and payment of the purchase money by Friedman & Loveman. No such proof was adduced.

Under well-known rules, the unrecorded deed to Musgrove Brothers was void as against Friedman & Loveman. Their deed passed the absolute title including the mineral interest.

The mineral right was no longer severed from the fee. Constructive possession which follows title, in the absence of actual possession, was in Friedman & Loveman and has passed with the title to their successors down to these complainants. This constructive possession applies to all the estate which passed to them, including the mineral interest. No actual possession of the mineral interest, apart from possession of the fee, is shown in any one at any time. Possession of the surface, so far as shown, has been in Friedman & Loveman and their successors. There is no need to inquire whether such actual possession obtained when the suit was commenced. Constructive possession is sufficient.

The general rule that a defense of bona fide purchaser must be specially pleaded does not apply here. The statutes prescribe the form and contents of a bill to...