Holgerson v. Gard

• Decision Date: 27 August 1952
• Docket Number: 1 Div. 481
• Parties: , 33 A.L.R.2d 1315 HOLGERSON et al. v. GARD et al.
• Court: Alabama Supreme Court

Page 427

60 So.2d 427

257 Ala. 579, 33 A.L.R.2d 1315

HOLGERSON et al. v. GARD et al.

1 Div. 481.

Supreme Court of Alabama.

Aug. 27, 1952.

Caffey, Gallalee & Caffey, Mobile, for appellants.

McCorvey, Turner, Rogers, Johnstone & Adams and C. A. L. Johnstone, Jr., Mobile, for appellees.

The plat of the lots involved is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

STAKELY, Justice.

This is a suit filed in equity for reformation of certain deeds and to quiet title against some of the respondents.

On December 31, 1945, Verdie Narkates Gard (one of the appellees) was the owner of Lots 7, 8, 9 and 10 in Block 14 of the Bascomb Tract, according to a plat duly recorded in the Probate Court of Mobile County. [The report of the case will show the aforesaid plat]. Mrs. Gard purchased the aforesaid lots in 1936 or 1937. She used the part which is designated as lot No. 10 as a chicken yard and for this purpose it was fenced on all four sides. At some time prior to 1945 she bought a small house and moved it on to her property. It became house No. 1257 Easton Street. A short time prior to December 31, 1945, she approached Charles H. Shoemake, Jr., and offered to sell him house and lot No. 1257 Easton Street. She pointed out the boundaries of the property which she proposed to sell. The house No. 1257 Easton Street was located partly on Lot 10 and partly on on Lot 9 and she had constructed a fense, running northwardly and southwardly across Lots 7, 8 and 9 so that the portion of Lots 7, 8 and 9 which lay to the east of the fence was a part of the premises upon which she had located the house and which she pointed out to Mr. Shoemake as the property she was offering for sale. The fence which had been constructed across Lots 7, 8 and 9 was the west boundary of the property which she was offering for sale and which he intended to buy.

In order to carry out the understanding which had been reached between Mrs. Gard and Mr. Shoemake, on December 31, 1945 a deed was executed by Verdie Narkates Gard and her husband Thomas O. Gard to Charles H. Shoemake, Jr. This deed described the property as Lot 10 in Square 14 of the Bascomb Tract as per plat recorded in Deed Book 128 N.S. at page 1. As a matter of fact Lot 10, according to the plat, has a frontage of 50 feet on Easton Street and runs back south 150 feet of even width. But the property which Mrs. Gard intended to sell and which Mr. Shoemake intended to buy included not only Lot 10 but a strip off of the eastern side of Lots 7, 8 and 9 which lay east of the fence. This additional strip had a frontage of 22 feet on Easton Street on its north line and 14 feet on the south boundary of Lot 7, which was the south boundary line of the strip. In other words, the lot actually conveyed by the deed lacked 22 feet of going to the fence on its north boundary line and 14 feet on its south line.

When Mr. Shoemake accepted the deed he understood that the existing fence was the west boundary line of the lot which the deed purported to convey. Mrs. Gard put him in possession of the house and lot up to the fence and he continued in possession thereof, claiming from the fence on the west boundary line of the lot, until he sold the lot to Alma Holgerson and her husband Allan Holgerson (appellants) on or about February 13, 1947. Mrs. Holgerson handled the transaction with Mr. Shoemake, her husband being a sea captain and absent at the time. He agreed to sell and she agreed to buy the property which he considered he had bought from Mrs. Gard. As a matter of fact, however, the deed from Chas. H. Shoemake, Jr., and his wife to Alma Holgerson and her husband described the property as being Lot 10 of Block 14 of the Bascomb Tract. At the time there was a fence on the south side, on the east side and on the west side except at the rear. The parties understood that Mr. Shoemake was selling and that Mr. and Mrs. Holgerson were buying the house and lot from fence to fence. Mrs. Holgerson went in possession and used the property up to the west fence without objection or question on the part of Mrs. Gard.

The court correctly found that the description contained in the two aforementioned deeds arose out of a mutual mistake and accordingly, except as to any portion of Lot 7, Block 14 of the Bascomb Tract, decreed a reformation of the two deeds so as to show the property which was actually intended to be bought and sold. Section 133 et seq., Title 47, Code of 1940.

In August 1947 Mr. and Mrs. Gard executed and delivered to William Zdenek and Ethel Zdenek a deed to Lot 7 in Block 14 of the Bascomb Tract. The court decreed that the complainants Allan and Alma Holgerson 'are entitled to no part of Lot 7, Block 14 of the Bacomb Tract' and that they were enjoined from trespassing upon or disturbing the possession of William and Ethel Zdenek in and to the aforesaid lot. It seems to be conceded that the correctness of the action of the court turns upon the question as to whether William and Ethel Zdenek were bona fide purchasers for value from the Gards, without notice of the equity in Lot 7 of the Holgersons.

Before we get to the evidence on the issue of bona fide purchase for value, our attention has been directed to the pleading on such an issue. As against an outstanding equity a bona fide purchase for value without notice must be specially pleaded where this does not appear on the face of the bill. Adams v. Pollak, 217 Ala. 688, 117 So. 299. And if the pleading is defective in this respect, even though there is proof, the respondent cannot have the benefit of this defense without amendment. Hooper Adm'r. v. Strahan, 71 Ala. 75. In the recent cases of Larkins v. Howard, 252 Ala. 9, 39 So.2d 224, 7 A.L.R.2d 541, and Lightsey v. Stone, 255 Ala. 541, 52 So.2d 376, citing Craft v. Russell, 67 Ala. 9, and other authorities, it was said that in order to constitute one a bona fide purchaser without notice and entitle him to the protection of the rule as against a prior equity or conveyance, it is essential "* * * (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant's equity, either at the time of his purchase, or at or before the time he paid the purchase-money, or otherwise parted with such value.' * * *' [252 Ala. 9, 39 So.2d 226.]

Appellants contend that a plea or answer setting up the defense of bona fide purchase for value without notice must allege that the purchase was from one in actual or constructive possession who was seized or claimed to be seized of the legal title at the same time. In support of this proposition the appellant cites the following cases: Hooper v. Strahan, 71 Ala. 75; May v. Wilkinson, 76 Ala. 543; Tutwiler v. Montgomery, 73 Ala. 263; Webb v. Elyton Land Co., 105 Ala. 471, 18 So. 178. Assuming for the purpose of discussion that the pleading omits the allegation referred to, we do not think that there is any contradiction in the early decisions of this court which have just been cited and the recent decisions of this court which have been referred to above. We say this because if in accordance with essential (4), as set forth in Larkins v. Howard, supra, and Lightsey v. Stone, supra it is alleged and shown that the purchaser had no notice and knew of no fact sufficient to put him on inquiry as to the complainant's equity at the time of his purchase or at or before he paid the...