Rankin v. Dean

• Decision Date: 17 December 1908
• Citation: 47 So. 1015,157 Ala. 490
• Parties: RANKIN v. DEAN ET AL.
• Court: Alabama Supreme Court

47 So. 1015

157 Ala. 490

RANKIN v. DEAN ET AL.

Supreme Court of Alabama

December 17, 1908

Appeal from Circuit Court, St. Clair County; A. H. Alston, Judge.

Ejectment by D. P. Rankin, Jr., against Walter Dean and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

James A. Inzer, for appellant.

M. M Smith, J. P. Montgomery, and Victor H. Smith, for appellees.

McCLELLAN J.

Hammond appears to have been the common source of title asserted by the parties litigant. The plaintiff, appellant, claims under a conveyance executed to him by Hammond on December 16, 1873 and the defendants, heirs at law of John R. Dean, claim under an instrument executed by Hammond, on November 15, 1873, to John R. Dean. The instrument to Dean, described therein as the "second party," is in the form of a warranty deed, except that it contains at its end the provisions which we quote: "Know the above obligation is such that whereas the said party of the second part pays or causes to be paid to the party of the second part his two several notes of even date for one hundred dollars each this obligation to be in full force and effect, otherwise to be null and void." It was shown that a note for said sum, executed by Dean to Hammond on November 15, 1873, was in existence about 1895, and was then unpaid. Indeed, it is not contended that said notes had been in fact paid, though it is insisted that the presumption, from such lapse of time, should be indulged that the notes referred to in the instrument had been paid. Under the influence of the quoted provisions of the instrument we cannot construe it, as a whole, otherwise than a conditional conveyance, which, to invest title in Dean, was dependent upon the payment in full of the notes referred to therein. If the instrument was interpreted to have conveyed title to Dean in præsenti, manifestly the condition quoted, as rendering the obligation a nullity would be ignored, thus defeating the intention of the parties. The effect of the quoted condition, as to validity degraded the instrument, otherwise constructed in the form of a deed absolute, into evidence of a conditional sale at most. Chapman v. Glassell, 13 Ala. 50, 48 Am. Dec. 41; Borst v. Simpson, 90 Ala. 373, 7 So. 814.

The presumption of payment, after 20 years from maturity of the notes, relied upon by appellees, cannot avail them in this character of action--ejectment by the vendor's grantee. That presumption is, in nature, a statute of limitations which, were the action for the unpaid purchase money, would be serviceable to defeat a recovery thereof by the vendor or his successor in right. But the action here involves the legal title, and the presumption stated cannot effect to divest and invest that title. Such presumption is, as said in the books, a shield, and cannot be converted into a weapon of offense. The question has been, in principle, fully...