Burnett v. Roman

• Citation: 192 Ala. 188,68 So. 353
• Decision Date: 15 April 1915
• Docket Number: 742
• Parties: BURNETT v. ROMAN.
• Court: Supreme Court of Alabama

68 So. 353

192 Ala. 188

BURNETT v. ROMAN.

No. 742

Supreme Court of Alabama

April 15, 1915

Appeal from Circuit Court, Lawrence County; C.P. Almon, Judge.

Statutory ejectment by S. Roman, as trustee, against Henry Burnett. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

G.O Chenault, of New Decatur, for appellant.

O Kyle, of Decatur, D.C. Almon, of New Decatur, J.B. Brown, of Montgomery, and J.M. Irwin, of Moulton, for appellee.

McCLELLAN J.

Statutory ejectment by the appellee against the appellant. The original complaint was filed July 31, 1907; and service of process was effected August 7, 1907. On September 3, 1907, the defendant filed two pleas, viz., the general issue and the short statute of limitations of three years.

On June 4, 1913, the defendant filed the following duly verified special plea, numbered 3:

"The defendant for further plea to plaintiff's complaint says that after the commencement of this suit, and after this defendant had filed his plea of not guilty, by deed dated June 1, 1911, the said plaintiff conveyed all the title or interest held by him in the land sued for, when he began this suit, to Cullman Property Company, and he pleads said sale and conveyance in bar of the further prosecution of this suit."

On the same day the plaintiff demurred to the special plea. The court sustained the demurrer.

According to the plaintiff's theory and contention, the trustee Roman, had purchased the Lawrence county lands in suit, with others situate in Morgan county, at a judicial sale.

During the reception of the defendant's evidence, he offered a copy of a conveyance, of date June 1, 1911, conforming to that described in plea 3, which plea was, as stated, stricken on demurrer. This copy purported to be a copy of a conveyance acknowledged and recorded in the Morgan county probate office. The copy offered was certified by the judge of probate of Morgan county. There was no offer of a certified copy of the instrument as under the authority of the judge of probate of Lawrence county, wherein the land in suit is situate.

It is entirely clear that the asserted conveyance, of date June 1, 1911, by the trustee, Roman, to the Cullman Property Company, effected to quitclaim the trustee's title to or interest in all the lands purchased by him at the mentioned judicial sale, except those theretofore sold. Such is the express general description in the asserted conveyance of June 1, 1911. Whether the lands in suit, in whole or in part, were within the exception stated in the asserted conveyance of June 1, 1911, was a question of fact to be determined upon evidence appropriate to its solution. The omission to describe lands, other than those situate in Morgan county, by government numbers, did not itself operate to render the conveyance of June 1, 1911, inadmissible as evidence.

Aside from conditional provisions therein made, but not here important, the act approved August 18, 1909 (Acts Sp.Sess. 1909, p. 14), amendatory of Code (1907) § 3374, provides:

"When Self-Proving--Certified Copy Evidence.--Conveyances of property, real or personal, or *** any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received in evidence in any court without further proof. ***"

It is insisted, in effect, that a certified copy of a conveyance of land is not within the quoted statute, unless the certificate is made by the custodian or officer (judge of probate) of the county in which the lands involved lie. Of course the certification required by the statute cannot be made by such a custodian or officer, unless the instrument is of record in his office.

Another statute (Code, § 3372) provides:

"Conveyances of real property must be recorded in the county in which such property is situated."

The original (section 3374) and the amendatory act, ante, are remedial in nature and purpose. 2 Lewis' Sutherland on Stat.Constr. § 638. The legislative intent was to facilitate the evidential availability of conveyances within the purview of the statutes.

Certified copies of conveyances, acknowledged or proved according to law, and recorded, are made admissible, subject to the exceptions stipulated in the amendatory act, in lieu of evidence showing due execution of the instrument. It is the judicial duty to construe statutes of this nature liberally, to the end that the legislative purpose may be advanced and the remedy effected. Sprowl v. Lawrence, 33 Ala. 674, 686. The statute does not provide in terms that the recording prescribed shall be in the county where the land is situate. Must the statute be read as if the above italicized expression was set in the statute just after the word "recorded"?

In view of the remedial character and purpose of the statute, we do not think the reference to recordation should be so restricted in its meaning or effect, and so notwithstanding the provisions before quoted from section 3372. Were the question one of notice, there would, of course, be no possible doubt that the registration (recording as the pertinent statutes contemplate) exacted for conveyance is a filing for record in the county where the land lies. The statute under consideration does not in any way concern notice as the result of registration. Its whole office is to...