Fitzgerald v. Williamson

• Decision Date: 14 January 1889
• Citation: 5 So. 309,86 Ala. 585
• Parties: FITZGERALD ET AL. v. WILLIAMSON.
• Court: Alabama Supreme Court

5 So. 309

86 Ala. 585

FITZGERALD ET AL. v. WILLIAMSON.

Supreme Court of Alabama

January 14, 1889

Appeal from circuit court, Lee county; J. M. CARMICHAEL, Judge.

A & R. B. Barnes and J. M. Chilton, for appellants.

T L. Kennedy, for appellee.

STONE C.J.

J. P Fitzgerald instituted this statutory real action against T F. Williamson and T. L. Kennedy. J. P. Fitzgerald died testate, and the suit was revived in the names of his devisees as plaintiffs. The case presents but a single question. The plaintiffs made title as follows: J. E. Williamson owned and was in possession of a half interest in the store-house and lot in controversy, and was indebted to J. P. Fitzgerald. This debt was reduced to judgments, and, under proper process issued upon them, a half interest in the premises was sold and conveyed by the sheriff to J. P. Fitzgerald, he being the highest bidder. The sale and conveyance were in October, 1882. These proceedings are in all respects regular, and no question is raised on them. Kennedy was in possession simply as tenant, claiming title. T. F. Williamson was his landlord, and claimed title in himself. His claim of title rests on testimony tending to prove the following facts: That in August, 1881, before Fitzgerald instituted his suits under which the lot was sold, but after the creation of the indebtedness on which the judgments were rendered, J. E. Williamson, for a valuable consideration, sold and conveyed his interest in the lot and store-house to T. F. Williamson, but no visible change was made in the possession of the premises. The deed contains the customary covenants of warranty. This deed was not placed on record, nor with the probate judge for registration, until June, 1882. Before that time Fitzgerald had recovered his judgments, executions had been levied on the property, and the circuit court had ordered its sale, the proceedings being regular. This gave Fitzgerald a lien on the premises, which would prevail over T. F. Williamson's unrecorded deed, in the absence of other proof. Dickerson v. Carroll, 76 Ala. 377. And the change of title, without visible change of possession, cannot operate as either actual or constructive notice. King v. Paulk, 85 Ala. 186, 4 South. Rep. 825.

To show notice to Fitzgerald of the prior sale and conveyance to T F. Williamson, the attempt was made to prove by J. E. Williamson that, before Fitzgerald even instituted his suits, he (the witness) notified him (Fitzgerald) that he had sold and conveyed the store-house and lot to said T. F. Williamson. This testimony was...