Henslee v. Henslee

• Decision Date: 18 August 1955
• Docket Number: 6 Div. 480
• Citation: 263 Ala. 287,82 So.2d 222
• Parties: Lola HENSLEE v. Lester C. HENSLEE et al.
• Court: Alabama Supreme Court

Page 222

82 So.2d 222

263 Ala. 287

Lola HENSLEE v. Lester C. HENSLEE et al.

6 Div. 480.

Supreme Court of Alabama.

Aug. 18, 1955.

Finis E. St. John and H. A. Entrekin, Cullman, for appellant.

John H. Chapman and A. L. Sapp, Cullman, for appellees.

GOODWYN, Justice.

This is a suit in equity seeking to have eighty acres of farm land located in Cullman County sold for division among the heirs at law of Mrs. Edna E. Henslee. All of the parties to the suit are children or grandchildren of Edna E. and J. C. Henslee, with the exception of Lola Henslee, joined as a party-respondent, who claims an interest in the property as the second wife and widow of J. C. Henslee. The bill of complaint also seeks a declaration that Lola Henslee has no such right, title, or interest in the property.

The respondent Lola Henslee answered the bill, praying that her answer be considered in the nature of a cross-bill, and denying that Edna E. Henslee was seized of the suit property at her death. She alleges that title to the land was vested in her husband, J. C. Henslee, at his death, and prays that the property be sold for division subject to her homestead and dower interests.

The court below entered a final decree granting the relief prayed for in the bill of complaint and dismissing the cross-bill. From this decree Lola Henslee takes this appeal.

In September, 1928, Edna E. and J. C. Henslee lived with their children on the farm which is the subject of this suit. The record title to the property rested in J. C. Henslee, who, under date of September 1, 1928, executed a deed purporting to convey it to Edna and reciting as a consideration therefor, '$1.00 Love and Affection, & for the purpose of correcting a formerdeed, & in lieu of all my indebtedness to my wife.'

It appears from the evidence that this deed was first acknowledged by the grantor before John W. Nuss, a Justice of the Peace of Cullman County, on September 15, 1928. The grantee, Edna Henslee, was present when the acknowledgment was taken.

On the same date, September 15, 1928, Edna Henslee made a deed purporting to reconvey the same property back to her husband, J. C. Henslee. This deed was acknowledged on that date before Adolphus L. Sapp, a notary public of Cullman County. The grantee, J. C. Henslee, was not present when the acknowledgment was taken.

Two days later, on September 17, 1928, the deed from J. C. to Edna was reacknowledged before S. J. Griffin, Judge of Probate of Cullman County, and, on that date, was filed for record under that acknowledgment. This second certificate of acknowledgment was pasted over, and partially obscured, the first certificate of John W. Nuss.

In August, 1930, Edna died intestate. J. C. continued to live on the place after his wife's death, and in 1932 married the respondent (appellant) Lola Henslee. On March 29, 1932, J. C., some months prior to his marriage to Lola, recorded Edna's deed purporting to reconvey the property to him. The property remained in his possession until his death in February, 1949, and is now in the possession of his widow, Lola Henslee. I.

Since appellees' right to relief is grounded upon Edna Henslee's title to the property, the first issue which must be determined is whether there was a valid delivery of the deed from J. C. to Edna.

'It may be regarded as settled in this state that when a paper purporting to be a deed is shown to have been signed by the grantor, to have been then acknowledged and duly certified by a proper officer, and recorded in the office of the judge of probate of the county in which the lands lie, and there is no other proof to weaken the force of these facts, this is sufficient proof of complete execution by delivery, although there is no direct proof of delivery. * * *' Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 613, 53 So. 812, 814.

From Skipper v. Holloway, 191 Ala. 190, 192, 67 So. 991, is the following:

'It is thoroughly well settled in this state that the mere filing of a deed for record by the grantor is prima facie a delivery of the deed to the grantee; and, if the deed is beneficial to the grantee, and imposes no burden upon him, his acceptance is presumed, even though he had, in fact, no knowledge of the existence of the deed.'

Appellant seeks to rebut the presumption arising from the recordation of the instrument under two theories.

First, it is contended that the acknowledgment of S. J. Griffin, dated September 17, 1928, which is pasted to the instrument over the previous acknowledgment of John W. Nuss, is false and fraudulent and therefore void; that the deed having been recorded under a void acknowledgment, the effect is that there was no legal recordation of the instrument at all; and that it follows, therefore, that the presumption of delivery must fall.

The burden is on the party attacking an acknowledgment to show that it is insufficient under the law. Federal Land Bank of New Orleans v. Sutton, 248 Ala. 529, 534, 28 So.2d 553; Carroll v. Carroll, 236 Ala. 556, 558, 183 So. 857; Loyd v. Oates, 143 Ala. 231, 233, 38 So. 1022, 111 Am.St.Rep. 39. The certificate of a notary is presumptively correct, and the evidence necessary to impeach it must be clear and convincing. Lukes v. Alabama Power Co., 257 Ala. 590, 593, 60 So.2d 349. Appellant seeks to have the court find, by way of inference, that the Griffin certificate is false and fraudulent, or 'spurious', from the evidence that the deed had been acknowledged two days previously before John W. Nuss, and from the irregular appearance of the deed in that the Griffin certificate is pasted over the Nuss certificate. This evidence, although sufficient perhaps to create a suspicion as to the motive of the grantor, does not satisfy the degree of proof required of one who attacks the validity of an acknowledgment. Bailey v. McQueen, 253 Ala. 464, 467, 45 So.2d 295; Federal Land Bank of New Orleans v. Sutton, 248 Ala. 529, 534, 28 So.2d 553; Fies & Sons v. Lowery, 226 Ala. 329, 332, 147 So. 136. In the case of Freeman v. Blount, 172 Ala. 655, 664, 55 So. 293, 296, this court declared:

'A regular certificate of acknowledgment to a deed, thereby forming 'a part of the deed,' will not be impeached for forgery or falsity in a case admitting evidence to impeach it, unless the evidence to that end is clear and convincing, 'reaching a high degree of certainty, leaving upon the mind no fair, just doubts'.'

It is next contended by appellant that the deed was executed and recorded, not for the purpose of conveying the property to the grantee, but for the purpose of deceiving the grantor's judgment creditor.

In this connection, appellant points to evidence that on May 22, 1928, one C. B. Pope, Jr., suing by his next friend, C. B. Popr, Sr., filed a damage suit against J. C. Henslee for $5,000. On September 1, 1928, J. C. signed the deed conveying the suit property and certain personal property to his wife, Edna. On September 12, 1928, a judgment by consent in the amount of $100 was taken against J. C. and on September 15, 1928, he acknowledged the deed before John W. Nuss, and on the same day Edna made and acknowledged the deed purporting to reconvey the same property back to him. Two days later J. C. reacknowledged his deed to Edna before S. J. Griffin, the Judge of Probate, and filed the same for record under the second acknowledgment.

While this evidence may be indicative of an intent on the part of J. C. to place his property beyond the reach of his creditors, it is nevertheless a well established principle that a deed made to defraud creditors, which is fully executed by delivery, though void as to...