Porter v. Henderson

• Decision Date: 12 June 1919
• Docket Number: 7 Div. 992
• Citation: 82 So. 668,203 Ala. 312
• Parties: PORTER v. HENDERSON.
• Court: Alabama Supreme Court

82 So. 668

203 Ala. 312

PORTER v. HENDERSON.

7 Div. 992

Supreme Court of Alabama

June 12, 1919

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Bill by W.D. Henderson against Essie C. Porter for the sale of lands for division. From the decree rendered, respondent appeals. Affirmed in part, and in part reversed and remanded.

The following is one of the papers directed to be set out:

"This indenture made and entered into this 15th day February, A.D.1911, by and between W.D. Henderson and his wife, Nevada Henderson, of the first part, and E.R. Poe, of the county of Talladega and state of Alabama, of the second part, witnesseth: That the said W.D. Henderson and wife Nevada Henderson, for and in consideration of the sum of one hundred and twenty-four dollars to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, have this day granted, bargained, sold aliened, enfeoffed, and conveyed, and by these presents do grant, bargain, sell, enfeoff, and convey, to the said E.R Poe and his assigns, all that certain tract or parcel of land lying and being in the county of Talladega and state of Alabama, and more particularly described as follows: Lots (2 and 3) two and three in block H in the town of Lincoln county of Talladega, and state of Alabama, according to the original published of said town of Lincoln, Ala. This deed conveys only such interest as was owned by Jessie Wills and her husband, Randall Wills.

"To have and to hold the above-described tract or parcel of land together with the tenements and appurtenances thereto belonging or otherwise appertaining unto the said party of the second part, his heirs and assigns, forever. And the said W.D. Henderson and wife, Nevada Henderson, of the first part, for themselves, their heirs, executors, and administrators, do warrant and will forever defend the title to the above-described and hereby granted premises unto the said party of the second part, his heirs and assigns, from and against themselves and all and every person claiming or holding under them, the said party of the first part, and against the lawful title, claim, or demand of all and every person whomsoever claiming or holding by, from, or under the government of the United States.

"In testimony whereof we have hereunto set our hands and seals the day and year above written.

"[Signed] W.D. Henderson. [L.S.]

"Nevada Henderson. [L.S.]"

(This deed was jointly and separately acknowledged.)

The deed from Jessie Wills and husband to W.D. Henderson is as follows:

"This indenture, made and entered into this the 21st day of November, A.D.1910, by and between Jessie Wills and her husband, Randle Wills, of the first part, and W.D. Henderson, of the county of Talladega and state of Alabama, of the second part, witnesseth: That the said Jessie Wills and her husband, Randle Wills, for and in consideration of the sum of one hundred and eighteen dollars to them in hand paid by party of the second part, the receipt whereof is hereby acknowledged, have this day granted, bargained, sold, aliened, enfeoffed, and conveyed, and by these presents do grant, bargain, sell, enfeoff, and convey, to the said W.D. Henderson and his assigns all that certain tract or parcel of land lying and being in the county of Talladega and state of Alabama, and more particularly described as follows, to wit: Lots (2 and 3) two and three in block H in the town of Lincoln, county of Talladega, and state of Alabama, according to the original published map of said town of Lincoln, Alabama.

"To have and to hold the above-described tract or parcel of land, together with the tenements and appurtenances thereto belonging, or otherwise appertaining, unto the said party of the second part, his heirs and assigns forever. And the said Jessie Wills and husband, Randle Wills, of the first part, for themselves, their heirs, executors, and administrators, do warrant and will forever defend the title to the above described and hereby granted premises unto the said party of the second part, his heirs and assigns, from and against themselves, and all and every person claiming or holding under them, the said party of the first part, and against the lawful title, claim, or demand of all and every person whomsoever, claiming or holding by, from, or under the government of the United States.

"In testimony whereof, we have hereunto set our hands and seals the day and year first above written. Jessie Wills. [L.S.]

"Randle Wills. [L.S.]

"Signed, sealed, and delivered in the presence of E.D. Acker.

"The State of Alabama, Talladega County.

"I, E.D. Acker, a notary public in and for said county, hereby certify that Jessie Wills and Randle Wills, whose names are signed to the foregoing conveyance, and who are known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, they executed the same voluntarily on the day the same bears date. Given under my hand this 21st day of November, 1910.

"E.D. Acker, a Notary Public.

"The State of Alabama, Talladega County.

"I, E.D. Acker, a notary public in and for said county, hereby certify that on the 21st day of November, 1910, came before me the within named Jessie Wills, known to me to be the wife of the within named Randle Wills, who, being examined separate and apart from the husband touching her signature to the within conveyance, acknowledged that she signed the same of her own free will and accord, and without fear, constraints, or threats on the part of her husband. In witness whereof, I have hereunto set my hand this 21st day of November, 1910.

"E.D. Acker, a Notary Public.

"The State of Alabama, Talladega County.

"I, J.E. Camp, judge of probate for said county, hereby certify that the within deed was filed in my office for record at 1 o'clock p.m. on the 17th day

of February, 1911, and duly recorded on the 17th day of February, 1911, in Deed Record, Vol. No. 66, on page 178.

"J.E. Camp, Judge of Probate."

The following is the deed from Burns and wife to Jessie Wills and her children:

"This indenture made and entered into this 4th day of November, A.D.1904, by and between R.B. Burns and his wife, Angie L. Burns, of the first part, and Jessie Wills and her children, of the county of Talladega and state of Alabama, of the second part, witnesseth: That the said R.B. Burns and Angie L. Burns, for and in consideration of $40.00 to them in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, have this day granted, bargained, sold, aliened, enfeoffed, and conveyed, and by these presents do grant, bargain, sell, alien, enfeoff, and convey, to the said Jessie Wills and her children and their assigns, all that certain tract or parcel of land lying and being in the county of Talladega and state of Alabama, and more particularly described as follows: Lots 2 and 3 in block H in the town of Lincoln, county of Talladega, and state of Alabama.

"To have and to hold the above-described tract or parcel of land together with the tenements and appurtenances thereunto belonging or in any wise appertaining unto said party of the second part their heirs and assigns forever. And the said R.B. Burns and wife, Angie L. Burns, of the first part, for themselves, their heirs, executors, and administrators, do warrant and will forever defend the title to the above-described and hereby granted premises unto the said party of the second part, their heirs and assigns, from and against themselves and all and every person claiming or holding under them, the said party of the first part, and against the lawful title, claim, or demand of all and every person whomsoever claiming or holding by, from, or under the government of the United States.

"In testimony whereof we have hereunto set our hands and seals the day and year first above written."

(Properly signed and jointly and separately acknowledged.)

Riddle & Riddle, of Talladega, for appellant.

Knox, Acker, Dixon & Sims, of Talladega, for appellee.

THOMAS J.

The original bill had for its purpose the sale of lands for division among joint owners.

Respondent filed answer and cross-bill, to which complainant demurred and answered. The decree granted relief to the original complainant, and respondent appeals.

The bill averred that W.D. Henderson owned a two-thirds interest in certain lots, and it was admitted that, if he owned an interest therein, said property could not be equitably divided without a sale. The answer and cross-bill denied that Henderson had any title to the property in question, and averred that the deed through which respondent claims conveyed a fee-simple title to her; that, if this was not its legal effect, in the chain of title under which she held said Henderson had made a warranty deed (to her immediate grantor) to said land, and was estopped to claim an after-acquired interest which passed under his said warranty deed. It is further averred (in the cross-bill) that valuable improvements had been made by subsequent purchasers, and if it be held that Henderson had thereafter acquired a superior two-thirds interest in the lands in equity, respondent should be allowed full value for said improvements made on the lands.

As stated by counsel, there is no dispute in regard to the issues of fact presented which inquire, in short: (1) Whether Jessie Wills, at the time she executed a deed (November 21 1910) conveying to W.D. Henderson lots 2 and 3 in block H, in the town of Lincoln, county of Talladega, state of Alabama, had an undivided interest in, or fee simple title to, said lots. This inquiry necessitates a construction of the deed of R.B. Burns and wife (November 4, 1904) conveying said lands to "Jessie Wills and her children." To an...