Michie v. Nebrig

• Decision Date: 16 April 1931
• Docket Number: 8 Div. 273.
• Citation: 134 So. 665,223 Ala. 175
• Parties: MICHIE ET AL. v. NEBRIG ET AL.
• Court: Alabama Supreme Court

134 So. 665

223 Ala. 175

MICHIE ET AL. v. NEBRIG ET AL.

8 Div. 273.

Supreme Court of Alabama

April 16, 1931

Rehearing Denied May 28, 1931.

Appeal from Circuit Court, Morgan County; Jas. E. Horton, Judge.

Action in ejectment by H. C. Michie, Jr., as trustee of Mollie S Michie, and others, against H. F. Nebrig and another. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded.

Eyster & Eyster, of Decatur, for appellants.

Julian Harris and A. J. Harris, both of Decatur, for appellees.

FOSTER J.

A short summary of the pertinent features of the transaction involved in this case is as follows:

Appellants owned a valuable tract of land suitable for a subdivision. Penny, Whitman, and Moebes undertook to purchase it. We will sometimes refer to them as the first purchasers. They first secured an option to purchase the land. On July 17th they entered into a contract to buy it, but, owing to a defect in its execution, another contract was made August 2, 1920, and recorded on that day. By it 10 per cent. of the purchase price was then paid, and 15 per cent. was to be paid January 1, 1921, when by the terms of the contract a deed was to be executed to them, and they were at the same time to execute a mortgage to secure the deferred paymnts to be due one, two and three years after January 1st. They had an auction sale in July, and sold lots publicly and thereafter privately, on the same terms-10 per cent. cash, 15 per cent. January 1st and one-fourth in one, two, and three years each. The contract provided that the sellers, appellants, would release the property sold from their mortgage upon receipt of certain cash and notes and mortgages of the purchasers.

Appellees purchased the lots in question prior to January 1st, made the cash payment, and took a receipt from the first purchasers as their sellers. Appellants knew nothing of this transaction. On January 1st the deed and mortgage were duly signed. There was conflict in the evidence as to the date of their delivery. The purchasers did not have all the cash in bank, but needed a few days, which appellants were willing to grant. Appellants claim that the deed and mortgage were not delivered until the 7th, when both instruments were recorded. The purchasers claim that they were delivered on the 1st, but were not to be recorded until a certain amount of money was procured for appellants, and that this occurred on the 7th, on which day they themselves had both instruments recorded.

In the meantime, and on the 1st, and after delivery of the deed and mortgage, but before their recordation, appellees claim to have paid the balance of 15 per cent. of their purchase price, received a deed from the first purchasers, and executed a mortgage to them for the remaining three-fourths, and afterwards paid them the amount of it as it matured, all without notice of the mortgage to appellants recorded January 7th.

The court declined to permit appellants to introduce in evidence the option and contracts of purchase by the first purchasers from them. This was upon the theory that there was no proof of notice of their contents to appellees, the subpurchasers, and that the record was not notice, and that there was no other notice to them of the mortgage or that there were deferred payments of the purchase money. The question left to the jury was whether the deed to the first purchasers was delivered prior to the execution and delivery of the deed by them to the subpurchasers.

We observe that, when appellees became the subpurchasers of the lots manifested by the payment of a part of the purchase money and the execution of a receipt, the terms of which are not shown, their sellers, the first purchasers, had only the contract of purchase to which we have referred as evidence of their claim or title. That contract, as we have observed stipulated that on January 1st appellants should execute a deed to the purchasers and take back a mortgage to secure three-fourths of the purchase price. Prior to the adoption of the Code of 1923, § 6854 (see Acts 1927, p. 496), there was no provision of law by which executory contracts to purchase real property were "instruments which may be legally admitted to record," which operated as notice of their contents. Section 6860, Code; Kendrick v. Colyar, 143 Ala. 597, 42 So. 110; Silvey v. Cook, 191 Ala. 228, 231, 68 So. 37. But the rule taken from the common law is firmly established that a purchaser buying real estate, of the title to which there must be evidence in writing, is chargeable with notice of what appears on the face of the writing by which the seller claims to own it (and other necessary links in the chain of title). 1 Warvelle, Vendors (2d Ed.) § 262; Corbitt v. Clenny, 52 Ala. 480; Johnson v. Thweatt, 18 Ala. 741; Burch v. Carter, 44 Ala. 115; Bradford v. Harper, 25 Ala. 337; Newsome v. Collins, 43 Ala. 656; Taylor v. Forsey, 56 Ala. 426; Sanders v. Robertson, 57 Ala. 465; Tennessee & C. R. R. Co. v. E. Ala. Ry. Co., 73 Ala. 426; Robbins v. Gilligan, 86 Ala. 254, 5 So. 568; Larkin v. Haralson, 189 Ala. 147, 66 So. 459; Marsh v. Marsh, 215 Ala. 571, 112 So. 189; Bank v. Buffalow, 217 Ala. 583, 117 So. 183; Smith v. Harbaugh, 216 Ala. 202...