Livingston v. Livingston

• Decision Date: 28 June 1923
• Docket Number: 603A.,3 Div. 603
• Citation: 210 Ala. 420,98 So. 281
• Parties: LIVINGSTON v. LIVINGSTON ET AL. ALEXANDER ET AL. v. LIVINGSTON.
• Court: Alabama Supreme Court

98 So. 281

210 Ala. 420

LIVINGSTON v. LIVINGSTON ET AL.

ALEXANDER ET AL. v. LIVINGSTON.

3 Div. 603, 603A.

Supreme Court of Alabama

June 28, 1923

Rehearing Denied Dec. 13, 1923.

Appeal from Circuit Court, Autauga County; B. K. McMorris, Judge.

Bill by Mary E. Livingston against Jeffie Roy Livingston and others and cross-bill by James E. Livingston and Ella S. Livingston by their next friend, J. D. Roy, against Peyton E. Alexander and others. From a decree dismissing the original bill complainant appeals; and from a decree overruling demurrer to the cross-bill respondents thereto appeal. Affirmed on both appeals.

W. A Gunter, of Montgomery, for appellants.

W. P McGaugh, of Montgomery, for appellees.

SAYRE J.

The opinion of this court on a former appeal may be found in 206 Ala. on page 186, 89 South. on page 520, under the name and style of Alexander v. Livingston. The causes of reversal appearing on that appeal were cured after the remandment of the cause. Upon a subsequent submission of the cause for a decree on the merits, complainant's bill was dismissed, and that decree is now under review.

By its decree, under review on former appeal, the trial court held that the mother of George S. Livingston, his grantor, was mentally incapable of executing the deeds to him, and this court on former appeal said:

"It appears from the evidence almost without conflict-but we express no opinion thereon as the case has to be reversed-that she was mentally incapacitated to execute voluntarily and intelligently the deeds at the time they were signed."

The evidence on this question has undergone no change, and now after further consideration, the court is clear to the conclusion that the grantor in these deeds was non compos mentis, and the deeds were and are nullities. The court is of opinion further, on evidence so clear and convincing as hardly to need statement, that grantee George S. Livingston well knew the condition of his mother's mind, for she had lived in the house with him for years, and he had attended to all her business affairs, and that for the conveyance in question he rendered no consideration whatever. The mortgagees had neither knowledge nor actual notice of the mental incapacity of their mortgagor's grantor; but that, in the present state of the law, can avail them nothing. The last clause of section 3347 of the Code provides that-

"The purchasers from such vendee, without notice of the insanity of the original vendor [vendee meaning a purchaser from an insane vendor in good faith and for a valuable consideration, including a mortgagee, as we have held], shall be protected in like manner and have the benefits of this section."

But, as we have said above, George S. Livingston was not a purchaser in good faith or for a valuable consideration, and it is the firmly settled law of this court that the deed of an insane person is absolutely void. Walker v. Winn, 142 Ala. 560, 39 So. 12, 110 Am. St. Rep. 50, 4 Ann. Cas. 537; Dougherty v. Powe, 127 Ala. 577, 30 So. 524, and cases there cited. It is settled likewise that a subsequent purchaser, holding under an original vendee in a void deed, though innocent, is not protected. Barden v. Grace, 167 Ala. 453, 52 So. 425, Ann. Cas. 1912A, 537. The very central fact in the law of bona fide purchase, to which all others are mere additions, is that the legal title passed into the bona fide purchaser at the time and as part of his purchase. 2 Pom. Eq. Jur. (4th Ed.) § 767. The mortgagees in this case were not invested with the legal title; that remained in the original grantor until her death and then descended to her heirs at law as tenants in common. As against complainant and her interest in the lands, which she took by descent from her mother, the mortgagees or their assigns can by their muniments take nothing. This conclusion follows from section 3347 of the Code and our consideration of its proper operation and effect (Hughes v. Dempsey, 209 Ala. 375, 96 So. 435), and is made compulsory by section 3348 of the Code, the language of which is that-

"Except as provided in the preceding section [that is, except as provided in favor of purchasers from insane persons in good faith and for a valuable consideration], all contracts of an insane person are void."

Nevertheless, the decree dismissing complainant's bill was well advised. For more than 10 years after the death of complainant's ancestor, and before the commencement of this suit, George S. Livingston, the grantee in the void deeds, under whom defendant mortgagees and their assigns claim, was in the adverse possession of the lands in controversy. After the death of his grantor, he and complainant were tenants in common, and his possession, without more, would not operate as a disseisin of complainant, his cotenant, for, in contemplation of law, he held for her. But it is impossible to mistake the intent with which he held. He had undertaken to convey the entire fee ( Abercrombie v. Baldwin, 15 Ala. 363), and it is conceded, as shown...