Russell v. Belsher

• Citation: 128 So. 452,221 Ala. 360
• Decision Date: 17 April 1930
• Docket Number: 6 Div. 459.
• Parties: RUSSELL v. BELSHER ET AL.
• Court: Alabama Supreme Court

128 So. 452

221 Ala. 360

RUSSELL v. BELSHER ET AL.

6 Div. 459.

Supreme Court of Alabama

April 17, 1930

Rehearing Denied June 5, 1930.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for breach of covenants in a deed by D. C Russell against Fannie E. Belsher and Thadeus L. Belsher. Judgment for defendants, and plaintiff appeals.

Reversed and remanded.

Henry Upson Sims and Shaffer B. Blake, both of Birmingham, and Thos. F. Seale, of Livingston, for appellant.

Altman & Koenig, of Birmingham, for appellees.

SAYRE J.

Appellant brought this action against appellees to recover damages for alleged breaches of covenants in the conveyance of a 40-acre tract of land in Choctaw county, that is, a conveyance of the standing timber on the tract. The case went to the jury on two counts of the complaint, count 1 charging a breach of the covenant of seisin, count 2, a breach of the covenant of a right to convey. Plaintiff's deed contained the covenants alleged. Plaintiff's evidence disclosed an outstanding conveyance by one Gray, or his personal representative, to the Allison Lumber Company at the time of the conveyance to him and tended to show an adverse holding by that company's grantor for ten years or more before it acquired color of title; that for defendants tended to show a title in themselves by adverse possession at and before the time of their conveyance to plaintiff. The evidence, without dispute, went to show that plaintiff, after being apprised by the lumber company of its claim to the timber, then uncut voluntarily yielded possession to it. Verdict went for defendants, and the assignments of error on this appeal are based upon plaintiff's exceptions to designated parts of the court's oral charge to the jury and the refusal of charges in writing requested by him.

The court instructed the jury in its oral charge that "when an action is brought by a grantee against the grantor for a breach of the covenant of seisin the defendant has the burden of proof to show that the title he has transferred is good and valid. This rule is founded on the reason that the defendant is supposed to know the state of the title, and the plaintiff has the negative until the defendant shows affirmative title on his part; but if the grantee yields to a paramount outstanding title before it has been judicially established he then has the burden of proof when attempting to recover from his covenantor and shall clearly establish the adverse title which he thus recognized. Where he yields without a contest or resistence he must take upon himself the burden of showing that the title which he yielded to was paramount."

Other propositions of law, or rather the same proposition in somewhat different forms, are shown by the assignments of error which are set out in the report of the case. Appellant correctly states, in effect, that a single question of law is raised by his appeal, viz.: On whom rests the burden of proof in an action based upon an alleged breach of covenant of seisin or good right to convey? Appellant's contention is that it rests upon the defendant grantor. The trial court, as the charge copied above discloses, instructed the jury-as we read the charge to mean and as consideration of the other charges assigned for error show it did intend-that if the grantee (plaintiff) yielded to a claim of paramount outstanding title before that claim had been judicially established, as the evidence showed without dispute he did he thereby assumed the burden of proving that the title to which he yielded was paramount. In other words, to state the issue with regard to the concrete case presented by the record, the court charged the jury that plaintiff grantee could not recover unless he had reasonably satisfied the jury that the right and title to which he yielded had been established by an adverse possession of ten years or more by Gray under whom the Allison Lumber Company claimed title.

It is well settled, as this court said in Anderson v Knox, 20 Ala. 161, that a covenant of seisin is broken as soon as made, if the covenantor had no title to the estate granted. So with respect to the covenant as to the right to convey, the equivalent, in most cases, of the covenant of seisin. 2 Devlin on Deeds (3d Ed.) § 893. From the language used we infer that the trial court, when formulating and acting upon the charges shown by the assignments of error, followed the text of sections 892 and 925 of Devlin on Real Estate (or Devlin on Deeds (3d Ed.), combining the two in one formula. In the first-mentioned section it is said: "When an action is brought by a grantee against the grantor for a breach of the covenant of seisin, the defendant has the burden of proof to show that the title he has transferred is good and valid. This rule is founded on the...