Sheridan v. Schimpf

• Decision Date: 30 November 1898
• Citation: 24 So. 940,120 Ala. 475
• Parties: SHERIDAN ET AL. v. SCHIMPF.
• Court: Alabama Supreme Court

24 So. 940

120 Ala. 475

SHERIDAN ET AL. v. SCHIMPF.

Supreme Court of Alabama

November 30, 1898

Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.

Bill by Louisa E. Schimpf against Catherine Sheridan and others to quiet title. From a decree for complainant, defendants appeal. Affirmed.

Joel W Goldsby and McCarron & Lewis, for appellants.

Shelton Sims, for appellee.

DOWDELL J.

The bill in this case was filed by the appellee under the act of December 10, 1892 (Acts 1892-93, p. 42), entitled "An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same," and which now constitutes article 13, c. 16, p. 313, Code 1896. The bill contains the requisite averments under the statute. Some of the respondents are adults, and others minors, who are represented by guardian ad litem. All of the respondents answered the bill (the minors by their guardian ad litem) and, after denying certain averments thereof, claimed an interest in the land, the subject-matter of the suit, setting forth and specifying their title, claim, or interest in the same; and, further answering the bill, the respondents charge and aver "that, before complainant [appellee here] set up any claim to the said lands or pretended to own any interest therein or have any title thereto, she had actual knowledge of the rights, title, and interest claimed by each and every respondent in and to said lands." The evidence in the case discloses the following facts pertinent to the questions presented by the record for our consideration Sarah Sheridan, the mother of respondent Catherine (Kate) Martin, Sr., and grandmother of the other respondents, was seised and possessed of the real estate in dispute consisting of a house and lot in the city of Mobile. The said Sarah died on December 12, 1884, leaving a last will and testament. In said will she devised said lot to her son Bernard Sheridan, the father of the Sheridan respondents in this bill, during his natural life, and to his children, forever, after his death. The will also provided that, "should he have no children at the hour of his death," said lot should go to her (said Sarah's) daughter, Kate Martin, and her children, forever.

This will was recorded on December 26, 1884, in the book of miscellaneous records in the probate office of Mobile county, but was not probated until April 9, 1895. Bernard Sheridan, the son of said Sarah, occupied said lot continuously from 1884 to January, 1896, when complainant went into possession of same. A short time prior to October 1, 1892, the said Bernard Sheridan engaged one John Case to negotiate for him a loan on said lot; and, to assist said Case, Bernard had one Francis Kiernan make out an abstract of his title to said lot. On this abstract the said will was not noted. The will had not been probated, and no administration had been had on the estate of said Sarah. Said Sarah left, surviving her, three children, the said Bernard Sheridan, Catherine Martin, and Thomas Sheridan, her only heirs at law. On October 1, 1892, Catherine Martin, joining with her husband, and Thomas Sheridan, with his wife, made and executed a deed to said lot to said Bernard, conveying their interest in said lot to said Bernard. This deed was noted on the abstract of title made by Kiernan, and the said Bernard claimed and represented that the lot was inherited from his mother. On this title, on the 11th day of October, 1892, the said Bernard being then in the actual possession of said lot, Mariah M. Kuhl made a loan of $700 to said Bernard, receiving as security a mortgage from him and his wife on said lot. At the time, she had no knowledge of the said will; nor did her counsel, who passed upon the abstract of title, and was alone her agent in the matter. The said Case and Kiernan were the agents of said Bernard. The said Bernard made default in the payment of said mortgage, and the same was duly foreclosed, and the complainant (appellee here) Louisa E. Schimpf, at the foreclosure sale, became the purchaser, and a deed was duly executed to her under said foreclosure sale conveying to her the said lot. At the foreclosure sale the following written notice was given the auctioneer: "May 6th, 1895. Since this mortgage was executed, a will has been found, and has been regularly probated. The existence of this will was unknown to mortgagor when mortgage was executed. It is my opinion that the fee-simple title is in the children of mortgagor, and not in the mortgagors themselves. Guy C. Sibley." On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree for the complainant, decreeing her the relief prayed for in her bill. This decree is now assigned as error.

It is a plain proposition of law that if Mariah Kuhl, the mortgagee got a good title to the lot in question under her mortgage, then the purchaser at the mortgage sale succeeded to that title, unaffected by the notice given at said mortgage sale. It is, however, contended on behalf of appellants, that the record of the will of Sarah Sheridan was, under the statute, constructive notice of its contents; and for that reason the title acquired by the mortgagee under the mortgage, as well as those holding under her, was subordinate to the interest and claims of the appellants, which they had as devisees under said will. Section 1008, Code 1896 (section 1814, Code 1886), is for the protection of creditors of the life tenant of real estate, against those claiming...