Lightsey v. Stone

Decision Date10 May 1951
Docket Number1 Div. 384
Citation255 Ala. 541,52 So.2d 376
PartiesLIGHTSEY v. STONE et ux.
CourtAlabama Supreme Court

Outlaw, Seale & Kilborn, Mobile, for appellant.

Johnston, McCall & Johnston, Mobile, for appellees.

LAWSON, Justice.

This proceeding was instituted in the circuit court of Mobile County, in equity, by Edward S. Stone and wife, Laura M. Stone, against Leon E. Lightsey to establish and define a disputed boundary line between adjoining city property. Incidental to this relief, the bill prayed for an injunction restraining Lightsey from trespassing and for damages resulting from the removal of shrubbery and for general relief.

The appeal is by the respondent, Lightsey, from a decree fixing the boundary line as claimed by the Stones, ordering Lightsey to remove the fence he had constructed, and enjoining him from trespassing. The trial court did not award damages for the removal of the shrubbery, finding that any damages suffered were negligible.

The real question in the case is whether the complainants or the respondent is entitled to the possession of a strip of land off the east side of Lot 20 of Alexander Heights addition to the City of Mobile, which strip is approximately thirteen feet wide and 150 feet long.

Lot 20 fronts on the north side of Woodruff Street, formerly called A Street, which street runs east and west. Lot 20 was owned by Lewis Cole and his wife, Etta Cole, each of whom owned an undivided one-half interest. Etta Cole died intestate in 1947 and was survived by her husband and two daughters, Mrs. Lanelle Hathorn and Mrs. Lavern Ford.

On May 1, 1948, Lewis Cole, his two daughters and their husbands, executed a deed conveying Lot 20 to Leon E. Lightsey, the respondent below. This deed purports to convey the fee simple title to all of Lot 20 and contains the following statement: 'The grantors herein being the surviving husband and only children of Etta Cole, who died intestate in February, 1947.' At the time this deed was executed, there was nothing on record to indicate that the grantors therein could not convey a fee simple title to all of Lot 20. As before indicated, Lewis Cole owned an undivided one-half interest. Upon the death of his wife Lewis Cole, by virtue of the provisions of § 12, Title 16, Code 1940, became vested with a life estate in the other undivided one-half interest, with the remainder or reversion in fee in his daughters.

Thus, it would appear that the respondent, Lightsey, would be entitled to the possession of all of Lot 20 which, as before shown, includes the strip off the east side thereof which is the subject of this controversy.

But the complainants claim that Lightsey was not a bona fide purchaser and that by virtue of events hereafter related, complainants and not Lightsey were entitled to possession of the said strip of land.

Lot 19 of Alexander Heights addition to the City of Mobile is situate immediately east of Lot 20 and is located at the northwest corner of the intersection of Woodruff Street and Florida Street. It has a frontage of fifty-two feet on Woodruff Street. Lot 19 was owned by Mrs. Lanell Hathorn and her husband. As before shown, Mrs. Lanell Hathorn is the daughter of Lewis Cole. On March 6, 1948, Mrs. Lanell Hathorn and husband executed a deed wherein they conveyed Lot 19 to Wiley D. Humphrey. A few days thereafter, on March 9, 1948, Lewis Cole and Wiley D. Humphrey entered into the following written contract:

'State of Alabama County of Mobile}

'This Agreement between Louis Cole, a widower, and Wiley D. Humphrey, Witnesseth:----

'That in consideration of the payment by the said Wiley D. Humphrey to the said Louis Cole of One and no/100 ($1.00) Dollar and for the purpose hereinafter set out, the said Louis Cole agrees as follows:----

'That he will convey to the said Wiley D. Humphrey without any other consideration, a strip of land off the East edge of Lot Twenty (20) of Alexander Heights, which the said Louis Cole owns, wide enough to make when added to Lot Nineteen (19) of said Alexander Heights, a frontage on A Street of sixty-five (65) feet with equal width throughout the depth of said lot.

'This agreement will be carried out as soon as the said Wiley D. Humphrey can have Lot Nineteen (19) surveyed and determine the width of said strip to be conveyed by the said Louis Cole.

'This agreement is made to consumate the purchase by the said Wiley D. Humphrey, from the daughter of the said Louis Cole, namely, Mrs. Lanell Hathorn, who has agreed and contracted to convey to the said Wiley D. Humphrey said Lot Nineteen (19) of Alexander Heights, the same to have a width of sixty-five (65) feet.

'In Witness Whereof, we have hereto set out hands in deplicate this 9 day of March, 1948.

'Lewis Cole (Seal)

Louis Cole

Wiley D. Humphrey (Seal)

'Witness as to Signature of Wiley D. Humphrey

Jere Austill

'State of Alabama County of Mobile}- 'I, Laura Stone, a Notary Public in and for said State and County, do hereby certify that Louis Cole, a widower, whose name is signed to the foregoing agreement, and who is known to me, acknowledged before me on this day, that, being informed of the contents of said agreement, he executed the same voluntarily on the day the same bears date.

'Given under my hand and official seal this 9th day of March, 1948.

'Laura Stone (Seal)

Notary Public, Mobile County, Alabama.'

This contract was not placed on record until July 15, 1948, after Lightsey had secured his deed to Lot 20 and after he and his family began occupancy of the dwelling located on said lot.

On March 19, 1948, Edward S. Stone and wife, Laura M. Stone, complainants below, purchased Lot 19 from Wiley D. Humphrey. This purchase was under a written contract of sale, which made no mention of the contract between Humphrey and Cole as to Lot 20. It is contended by the Stones, and the evidence supports their contention, that at the time Humphrey conveyed Lot 19 to the Stones, and as a part of that transaction, he orally transferred to the Stones his interest in Lot 20 under his contract with Cole. The evidence was sufficient to support a finding that Cole knew of this transfer.

It is undisputed that on the day of the execution of the conveyance of Lot 19 by Humphrey to the Stones, they went into possession of that lot. The Stones also contended that on the same day, under their oral contract with Humphrey, they went into possession of the east thirteen feet of Lot 20, the strip of land here involved, although no survey had been made as provided by the written contract between Humphrey and Cole and no conveyance executed by Cole.

As before shown, the contract between Cole and Humphrey was in writing. This contract was sufficient under the statute of frauds. Dobson v. Deason, 248 Ala. 496, 28 So.2d 418; Cotton v. Cotton, 75 Ala. 345; Wilkins v. Hardaway, 173 Ala. 57, 55 So. 817; Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363.

By virtue of this contract with Cole, Humphrey acquired an equitable interest in the land. Bay Minette Land Co. v. Stapleton, 224 Ala. 175, 139 So. 342; J. A. Owens & Co. v. Blanks, 225 Ala. 566, 144 So. 35; Boozer v. Blake, 245 Ala. 389, 17 So.2d 152; Lynch v. Partin, 250 Ala. 241, 34 So.2d 2.

At the time Cole entered into the contract with Humphrey, he owned an undivided one-half interest in Lot 20 and had the use of the entire lot during his life, as the surviving husband of Etta Cole, who owned the other undivided one-half interest and who, as before shown, died intestate. § 12, Title 16, Code 1940. Hence Cole could convey the fee simple title to his one-half undivided interest and a life estate in the other undivided one-half interest, thus giving to his grantee the right of possession during the life of Lewis Cole. Murphy v. Leatherwood, 221 Ala. 61, 127 So. 843. Though the contract between Cole and Humphrey purported to relate to the entire fee, it could only convey Cole's life estate as to the one-half undivided interest formerly owned by his wife, Etta Cole. Murphy v. Leatherwood, supra.

Since the statute of frauds has no application to the written contract of sale between Cole and Humphrey, the cases of Smith v. Thomas, 224 Ala. 41, 138 So. 542, and Barclift v. Peinhardt, 18 Ala.App. 340, 92 So. 208, have no bearing on the question here considered. Those cases are also distinguishable in that the grantors had only an undivided interest in the property, without any right of possession of the entire premises during the life of the grantor, as is the situation in the instant case.

As before indicated, the transfer by Humphrey to the Stones of his rights under the contract with Cole was by parol. Appellant, Lightsey, seeks to invoke the statute of frauds, Cole 1940, Tit. 20, § 3, as to this transaction. But he cannot invoke the statute of frauds, for it applies only to persons who are parties to the parol contract and their privies and those whose rights are directly controlled by it. Bradley v. Hall, 239 Ala. 544, 195 So. 883; Hooper v. Reed, 211 Ala. 451, 100 So. 875; Ex parte Banks, 185 Ala. 275, 64 So. 74. Neither Lightsey nor those under whom he claims, Cole and his daughters, are privies to the contract between Humphrey and the Stones.

We think the evidence warrants a finding that complainants had an equitable interest in the strip of land here involved.

But the mere establishment of an equity in the complainants in the strip of land here involved is not sufficient to entitle them to possession. They are not entitled to possession if Lightsey was a bona fide purchaser.

In order to constitute one a bona fide purchaser 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...

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