Harton v. Enslen

• Decision Date: 15 May 1913
• Citation: 182 Ala. 408,62 So. 696
• Parties: HARTON v. ENSLEN et al.
• Court: Alabama Supreme Court

62 So. 696

182 Ala. 408

HARTON v. ENSLEN et al.

Supreme Court of Alabama

May 15, 1913

Appeal from Chancery Court, Jefferson County; A.H. Benners, Judge.

Action by H.M. Harton against E.F. Enslen and others. Judgment for defendants, and plaintiff appeals. Affirmed.

S.C.M Amason, of Birmingham, for appellant.

H.C Selheimer and Campbell & Johnston, all of Birmingham, for appellees.

McCLELLAN J.

The general nature and purpose of this bill exhibited by H.M Harton (appellant) against E.F. Enslen and others may be found stated in the report of the former appeal. 57 So. 723. After affirmance the bill was amended, and by decree of June 18, 1912, demurrers thereto were sustained. It is from this decree the present appeal is prosecuted.

The complainant appears on the face of the bill to be without interest in or right to the land in question, unless he obtained an interest or right thereto through the quitclaim deed from W.E. Martin, whose sole means for acquiring an interest or right to the land is to be found in the deed executed to Martin by the State Auditor on February 21, 1899.

In the effort to avoid the pronouncement, on the former appeal, that Martin's deed to Enslen was effective before that of Martin to complainant, thus rendering the latter "wholly worthless as a muniment of title," the bill was amended by the addition of these averments: "Your orator further avers that said E.F. Enslen had said W.E. Martin to date said deed prior to and before the date of the quitclaim to the land that said W.E. Martin executed to him, as averred and set out in paragraph 5 of this bill of complaint." In paragraph 5 of the bill, mentioned in the just quoted amendment, this is the presently pertinent allegation "Your orator further avers that said W.E. Martin sold said land to him, and on or about, to wit, the 20th day of March, 1903, executed to him a quitclaim deed to same in consideration of the sum of $186.28." The deed from Martin to E.F. Enslen, including the certificate of acknowledgment by the notary public, bears date of March 17, 1903. It is manifest, we think, that the amendment failed and fails to conclude to the effect that the Martin-Enslen deed was falsely antedated. Indeed, the averment consists with truth in respect of the date thereof. It imports in no degree the falsification of the true date of the Martin-Enslen deed. And the correctness of this view is emphasized when the quoted (ante) averment of paragraph 5, with respect to the date of the Martin-Harton deed, is considered. There the date of the Martin-Harton deed is described as being "on or about, to wit, the 20th day of March, 1903." Such uncertainty with respect to precedence in time, where the order in which acts are done must determine, as here, the rights of litigants, is far from the certainty required in...