Jackson v. Fillmore

• Decision Date: 19 January 1979
• Citation: 367 So.2d 948
• Parties: John A. JACKSON, Jr., et al v. Jesse E. FILLMORE. 77-389.
• Court: Alabama Supreme Court

Page 948

367 So.2d 948

John A. JACKSON, Jr., et al v. Jesse E. FILLMORE.

77-389.

Supreme Court of Alabama.

Jan. 19, 1979.

Rehearing Denied Feb. 9, 1979.

James E. Hart, Jr., Brewton, for appellants, John A. Jackson, Jr. and Thomas E. McMillan, Jr.

Lee M. Otts and John Thaddeus Moore, Brewton, for appellee, Jesse E. Fillmore.

T. M. Brantley of Brantley & Vargo, Bay Minette, for appellee, Mary E. Jackson.

BLOODWORTH, Justice.

The sole issue in this case is whether the rule announced in Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972), should be applied retrospectively or prospectively to the facts of this case. We hold that it should be applied prospectively and affirm.

The facts, as clearly and concisely stated in the trial court's judgment, are as follows:

"This is a suit to quiet title brought by Jesse E. Fillmore against John A. Jackson, Jr., Thomas E. McMillan, Jr., Mary E. Jackson and others, seeking to quiet title against the surface of lands described in his Bill of Complaint and an undivided one-half interest in the minerals, subject to a mortgage and an oil lease.

"The Defendant, Mary E. Jackson, by her answer, claimed an undivided one-half interest in the minerals under said property. By their answer, John A. Jackson, Jr. and Thomas E. McMillan, Jr. each claimed an undivided one-fourth interest in the surface and minerals of the property. Other defendants by their answers claimed various leasehold and royalty interest in said property. This cause was set for a hearing on the 14th day of October, 1977. Testimony was taken ore tenus and the matter was submitted to the Court on the pleadings of all the parties; testimony, which was taken ore tenus, documentary evidence attached to the pleading and introduced at the time of the trial and request for an admission of facts, and facts admitted . . . .

"Prior to December 1, 1966, John A. Jackson was the owner in fee simple of the 160 acres of land which is the subject matter of this suit.

"By warranty deed dated December 1, 1966, John A. Jackson and wife, Mary E. Jackson conveyed this land to John A. Jackson and Mary E. Jackson as joint tenants with right of survivorship. Said deed was prepared in this manner by Hugh M. Caffey, Jr., Attorney at Law, Brewton, Alabama, at the request of both Mr. and Mrs. Jackson. From the testimony in this cause it appears that Mr. Caffey explained to Mr. and Mrs. Jackson that title would be held by them jointly during their lifetime and on the death of either, the survivor would then own the entire interest in the property.

"Subsequently, on July 17, 1967, John A. Jackson executed a deed which purported to convey his interest in subject property to his son, John A. Jackson, Jr. On the date of this deed to John A. Jackson, Jr., the grantor, John A. Jackson, was legally married to Mary E. Jackson, and this deed was not executed by Mary E. Jackson. No consideration was paid in connection with this conveyance.

"John A. Jackson (also known as John Allen Jackson), who was the husband of Mary E. Jackson, died intestate on January 27, 1968.

"In August, 1968, Jesse Fillmore entered into an agreement with Mary E. Jackson, whereby Mary E. Jackson agreed to sell subject property to Jesse E. Fillmore for the sum of $16,200.00, with the sales transaction to be closed on or before September 16, 1968. Mr. Fillmore paid Mrs. Jackson $500.00 and on August 16, 1968, Mrs. Jackson executed a warranty deed conveying said property to Mr. Fillmore. This deed was left with Mrs. Jackson's attorney, Hugh M. Caffey, Jr., Brewton, Alabama, to hold in escrow pending receipt of the balance of the purchase money.

"The Citizens-Farmers & Merchants Bank of Brewton, Alabama, (now First National Bank) agreed to loan Mr. Fillmore the necessary funds with which to purchase subject property. As security Mr. Fillmore was to execute a mortgage to the bank listing as security subject property.

"Mr. Fillmore requested Mr. Caffey to examine the title to subject property and to address his opinion to the Citizens-Farmers & Merchants Bank. Mr. Caffey did render an opinion to the bank on September 9, 1968. In paragraph 2 of this opinion this attorney stated as follows:

" 'By deed dated December 1, 1966, and recorded on February 10, 1967, in Deed Book 221, page 293, John A. Jackson and Mary A. Jackson conveyed the above described real estate to John A. Jackson and Mary A. Jackson jointly for life with the remainder to the survivor of them. Thereafter and on July 17, 1967, by warranty deed recorded on August 9, 1967, John A. Jackson attempted to convey his interest in subject real estate to his son, John A. Jackson, Jr., also known as John Allen Jackson. I personally know that John A. Jackson, Sr. died on January 27, 1968, and it is my opinion that in spite of his conveyance to John A. Jackson, Jr., as above pointed out, Mary E. Jackson under the express terms of the survivorship deed executed on December 1, 1967, acquired an absolute title in and to the above described real estate and that her present ownership is subject only to the mortgage mentioned as exception number 1.'

"It was stipulated by the parties that Hugh M. McCaffey, Jr. was well qualified as a real estate and title attorney and could be considered an expert in this field of the law.

"The testimony in this cause further reflects that Mr. Caffey at the request of Jesse Fillmore researched the law pertaining to survivorship deeds prior to rendering the title opinion mentioned . . . above and in reliance upon the law of this State at that time as set out in the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965) and in many other cases on this subject by the Appellate Courts of this State this attorney prepared and delivered to the Plaintiff in this cause a title opinion stating that in spite of an attempted conveyance to John A. Jackson, Jr. that Mary E. Jackson under the law of this State and under the express terms of the survivorship deed executed on December 1, 1966, from John A. Jackson and Mary E. Jackson to John A. Jackson and Mary E. Jackson as joint tenants with right of survivorship that upon the death of John A. Jackson (Sr.), Mary E. Jackson acquired an absolute title to subject property.

"It further appears from the undisputed testimony in this cause that immediately after the closing of the transaction wherein on September 15, 1968, Mary E. Jackson sold all of the surface of the lands to the Plaintiff in this cause for $16,200.00 that said Plaintiff Jesse E. Fillmore went into possession of said property and since said purchase has expended many thousands of dollars and considerable time and labor in improving said property and rendering it more suitable for farming."

There is an additional fact which should be noted. On September 10, 1975, John A. Jackson, Jr., and his wife purportedly conveyed an undivided one-fourth interest in the property to McMillan.

John A. Jackson, Jr., and those claiming under him, contend that the principle established in Nunn v. Keith, supra, that a...