Fowler v. Morrow, 8 Div. 264.

• Decision Date: 18 November 1943
• Docket Number: 8 Div. 264.
• Citation: 15 So.2d 629,245 Ala. 2
• Court: Alabama Supreme Court
• Parties: FOWLER v. MORROW.

15 So.2d 629

245 Ala. 2

FOWLER v. MORROW.

8 Div. 264.

Supreme Court of Alabama

November 18, 1943

Appeal from Law and Equity Court, Franklin County; W.H. Quillin Judge.

The land involved is thus described in the bill and conveyance "One acre more or less lying between the three roads right of ways Russellville and Red Bay road and the Vina Road and the Vina and Red Bay Road where Albert Morrow Store and garage and mill are located, said land is in the SE 1/4 of Sec. 13 T. 7, R. 15."

The bill alleges that complainant filed an ejectment suit on the law side of the court to recover possession of said land relying upon a deed from W.P. Hall and wife Fannie Hall, dated April 10, 1928 (a copy of which is exhibited), but that the court held that said deed did not pass the legal title and that complainant could not maintain ejectment. Thereupon complainant moved to transfer the cause to the equity side of the court, which motion was granted. It is alleged that said deed did not pass the legal title to the property to complainant, but that the consideration of said deed was one dollar and the purchase of a stock of merchandise owned by said Hall and wife, which consideration was paid and complainant was placed in possession of said property by the grantors and remained in possession until about the year 1936, when respondent took possession of said property under a deed from one or both of the grantors and now claims to own said property, refusing to allow complainant to have the same. That the consideration for said deed having been paid by complainant and said deed having been signed but improperly acknowledged by the officer, in failing to sign and certify to the general acknowledgment, and complainant having been put in possession by the grantors, he is entitled to specific performance of said contract by the respondent who received a conveyance to said property since said deed to complainant, and who claims said land through the same source of title, and the complainant having complied with his part of the contract.

The prayer of the bill is for a decree causing said contract to be specifically performed by respondent and that title to the land be quieted and confirmed in complainant.

The deed exhibited with the bill, recites that "W.P. Hall and wife Fannie Hall for and in consideration of One Dollar to be paid in hand by Albert Morrow, the receipt whereof is hereby acknowledged, do grant, bargain, sell and convey unto the said Albert Morrow" the land above described, and "There will be no tax to be paid on said land by Albert Morrow until after our deaths." It purports to be signed by W.P. Hall and, by mark, by Fannie Hall. The general acknowledgment, filled out and dated by a Justice of the Peace appears not to have been signed by him. The separate acknowledgment by the wife bears the signature of the Justice of the Peace.

This deed bears an endorsement of recording as of August 23, 1939.

Respondent by his answer asserts that complainant's deed passed no title whatever to him and denies that the grantors put him into possession. It is alleged that respondent has himself been in the open and undisputed actual possession of the land since January 2, 1933, holding under a claim of ownership in fee simple and under a deed of conveyance sufficient to constitute either ownership or color of title; that on said date he bought the land in question from W.P. Hall and wife, one or both, receiving a conveyance thereto, about which time he was placed in possession and has remained in actual possession under claim of ownership, down to the time complainant brought his suit in ejectment. That when he paid the purchase money and went into possession of the tract he was without any notice or knowledge of any claim of ownership on the part of complainant, and that as against any such claim of ownership by complainant respondent is an innocent purchaser.

On the hearing respondent introduced, among others, a deed from W.P. Hall to Fannie Hall, dated February 18, 1924, and conveying the East Half of the Southeast Quarter of Section 13, Township 7, Range 15, with stated exceptions; a deed from Fannie Hall to J.A. Fowler dated January 2, 1933, conveying the same land, upon a recited consideration of "One Dollar and to nurses fee until death of both Fannie Hall and W.P. Hall, her husband;" and also a deed from Fannie Hall to J.A. Fowler, dated February 20, 1936, conveying the same land upon a consideration of maintenance and support of the grantor.

It appears that the larger tract conveyed to respondent, and containing about 57 acres, embraces the one or more acre tract claimed by complainant; that the wife of complainant Morrow is the niece of W.P. Hall and the wife of respondent Fowler...