Perry v. Marbury Lumber Co.

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 235
• Citation: 103 So. 580,212 Ala. 542
• Parties: PERRY et al. v. MARBURY LUMBER CO.
• Court: Alabama Supreme Court

103 So. 580

212 Ala. 542

PERRY et al. v. MARBURY LUMBER CO.

6 Div. 235

Supreme Court of Alabama

March 26, 1925

Appeal from Circuit Court, Jefferson County; Edgar Bowron, Special Judge.

Action for breach of warranty by A.A. Perry and another against Marbury Lumber Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

A.L Crumpton, of Ashland, for appellants.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellee.

MILLER J.

This is a suit brought by A.A. Perry and J.P. Perry against the Marbury Lumber Company, a corporation, for breach of a warranty in a deed conveying to them 180 acres of land, more or less, particularly described in the complaint. Count 1 of the complaint alleges defendant for $1,800 sold by deed dated November 7, 1918, this land to the plaintiffs; that the land intended to be conveyed was incorrectly described in the conveyance, and to correct the errors therein the defendant made another deed conveying the land to plaintiffs by correct description on June 14, 1923. The defendant covenanted with the plaintiffs that it was lawfully seized in fee of the lands, which was to be binding as of November 7, 1918, the date of the first conveyance, and that defendant was not lawfully seized in fee simple of said lands; that at said time there was an outstanding lawful right and title to said land in one J.C. Street, and they were required to, and did, purchase from the said J.C. Street his right and title to the land before filing this suit, and paid him $1,900, which was necessary to purchase and hold the land.

Count 2 is practically the same as count 1, except it avers the covenant therein was as follows, "Said lands were free from all incumbrances," which was breached because at the time the lawful right and title to the land was in J.C. Street.

Count 3 is practically the same as count 1, except the covenant therein was, "That it had a good right to sell and convey the said land to these plaintiffs," and this was not true, and the covenant was breached because J.C. Street at that time had an outstanding lawful right and title to the land, superior to the right and the title of defendant.

Count 4 is practically the same as count 1, except the covenant therein was, "That it will warrant and defend said land to plaintiffs forever against the lawful claims of all persons," and this was not true, because at that time there was an outstanding title to the land in one J.C. Street, which was superior to the title of the defendant, and plaintiffs have purchased this superior title of said street to the land.

Each count avers, in substance, that plaintiffs were required to, and did, purchase the title of Street to this land before filing the suit, and they did have to pay him $1,900 to secure the title, and this was necessary for them to hold the land.

The cause was tried by the court without a jury on the general issue, filed by defendant to the complaint, and from a judgment by the court in favor of the defendant this appeal is prosecuted by the plaintiffs.

Under the averments of each count of the complaint, no eviction of the plaintiffs by J.C. Street, actual or constructive, of any part of the land, is averred, and there is no proof showing an eviction by legal process. Neither was necessary because the counts allege a hostile assertion of an irresistible, paramount title to the land by J.C. Street, and the plaintiffs aver they yielded to it without awaiting suit by purchasing this superior right and title of Street to the land. This places on the plaintiffs the burden of proving that the title of J.C. Street to the land when they purchased it from him was really paramount to their title to the land secured by deed from the defendant, and that Street could have evicted them by legal process. Copeland v. McAdory, 100 Ala. 553, 559, 13 So. 545; Tiedeman on Real Property, § 855. In the case of Copeland v. McAdory this court wrote:

"An eviction, actual or constructive of the whole or a part of the premises, is an essential constituent of the breach. But it is not intended that there must be an eviction by legal process. If there is a hostile assertion of an irresistible, paramount title, the grantee may yield to it, not awaiting suit and judgment. If he yields, it is at his peril, and he takes upon himself in an action for a breach of the covenant, the burden of proving the title really paramount. Tiedeman on Real Property, § 855."

The plaintiffs offer evidence showing that George W. Beaird was in possession of this land claiming it in 1889, and sold and conveyed it by deed September 30, 1889, to John S. Turner. It was filed and recorded in the probate office, and John S. Turner went into possession of the land under that conveyance, and on February 15, 1900, by deed, sold and conveyed it to J.C. Street, which deed was duly recorded. On June 19, 1923, J.C. Street and wife for a consideration of $1,900 sold and conveyed this land to J.P. Perry, one of the plaintiffs in this cause.

It is to be observed that J.C. Street sold and conveyed the land to only one of the plaintiffs, and each count avers it was sold and conveyed by him to the plaintiff [both]; but no objection to its introduction was made on that account, and the parties raise no point on it in their argument, but have considered the case on its merits.

The plaintiffs also introduced in evidence a warranty deed to them executed by defendant on November 7, 1918, describing incorrectly a part of this land, and a warranty deed correctly describing the land was afterwards executed by defendant to plaintiffs on June 14, 1923, binding as to warranty as of date of the former deed, which conveyances were duly filed and recorded in the proper probate office. The plaintiffs also introduced in evidence a certified copy of the delinquent tax sale and redemption record docket showing decree of sale of this land for nonpayment of taxes amounting to $5.72, assessed against J.C. Street, and for other fees, charges, and costs mentioned in the decree. This record shows the decree was rendered at the May term, 1906, for the taxes assessed, $5.72, "for year 1906, and that same are still due and unpaid." It is evident from this record and other evidence that the decree of sale was for taxes for the year 1905 and not 1906; that "1906" instead of 1905 was a clerical error and inadvertently written in the decree. This record shows the sale was on June 18, 1906, that the defendant, Marbury Lumber Company, was the purchaser, and the amount bid and paid for it was $112. The plaintiffs introduced in evidence a deed executed by the judge of probate of Randolph county, conveying this land to the purchaser at the tax sale, the Marbury Lumber Company, the defendant in this cause. It is dated August 8, 1908, and was imperfectly acknowledged by the judge of probate before a notary public. Said deed was duly filed and recorded on the date it was executed in the proper probate office.

J.C. Street, witness for the plaintiffs, testified that he "learned in 1908 that Marbury [defendant] had bought the land for taxes, *** when I found out that my tenants had paid rent to Marbury Lumber Company on these lands. I knew Mr. Lewis, the land agent of the Marbury Lumber Company, in that section of the country at that time. I saw him about the land and the rents shortly after I learned of the claim of the Marbury Lumber Company to the land." Plaintiffs then asked the witness the following question: "What did he tell you with reference to it?" The court properly sustained the objection to this question on the ground it is not shown that this agent had any authority to make any admissions to bind the Marbury Lumber Company. This proof of agency and authority was necessary to make the conversation relevant and competent. At that time there was no such proof before the court. Stanley v. Sheffield, 83 Ala. 261, 4 So. 34; M. & G.R. Co. v. Cogsbill, 85 Ala. 456, 5 So. 188. The plaintiffs cannot justly complain of this ruling, if it was error, because this conversation between Lewis and Street called for by the question was afterwards placed in evidence. The court permitted Street to testify as to a conversation between him and the president of the defendant company, in which he narrated to the court the full conversation of what he had said to Lewis and what Lewis said to him. He testified to telling this conversation to the president of the company, and what the president said as well as Lewis. Supreme Court Rule 45, Code 1923, p. 895. The plaintiffs asked the witness, "Did you know him [Mr. Lewis] as land agent of the Marbury Lumber Company?" to which he answered, "Yes, sir." This answer was on motion of the defendant excluded by the court because it was not the proper way to prove agency, and no facts are stated by the answer showing authority from the defendant to act for it. This witness had previously testified, without objection, that "I knew Mr. Lewis, the land agent of the Marbury Lumber Company, in that section of the country at that time," and if the court erred in this ruling it was without injury, as that evidence was before the court from this witness. Supreme Court Rule 45, supra.

The court did not err in refusing to allow plaintiffs to show by witness Street that during the time that he had owned this property, he had been in the habit of paying his taxes by rendering checks through the mail. One issue in the cause was whether Street had paid the taxes for 1905 on this property before it was sold in 1906 for the taxes of that year (1905). The court permitted him to show a letter from the tax collector dated February 5, 1906, stating: "Your taxes in this Co. is $6.65. Please send P.O. order, and I will mail receipt to you." The court permitted him to...