Sloss-Sheffield Steel & Iron Co. v. Taff

• Decision Date: 17 February 1912
• Citation: 59 So. 658,178 Ala. 382
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. TAFF ET AL.
• Court: Alabama Supreme Court

59 So. 658

178 Ala. 382

SLOSS-SHEFFIELD STEEL & IRON CO. v. TAFF ET AL.

Supreme Court of Alabama

February 17, 1912

Rehearing Denied June 29, 1912.

Appeal from Circuit Court, Walker County; James J. Ray, Judge.

Ejectment by W. P. Taff and others against the Sloss-Sheffield Steel &amp Iron Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

McClellan and Somerville, JJ., dissenting.

The facts sufficiently appear in the opinion. The following charges were given at the instance of the plaintiff:

(1) "The court charges the jury that after the death of M Taff the title to the land in controversy vested in his heirs as against this defendant, and that any statement made by the widow could not prejudice their rights, or deprive them of their title, so long as they resided on said property, or had actual possession of the same."

(2) "The court charges the jury that after the death of M Taff the title to the land in controversy vested in the heirs of M. Taff as against the defendant in this cause."

The following is the charge refused to the defendant: "If you believe from the evidence that the dispute between Laird and Susan A. Taff, with reference to the land in question was settled or quieted by the execution of a deed from Laird to Mrs. Taff, with the contemporaneous understanding that the Taffs should hold the surface and Laird the minerals, in settlement of all differences, and that with this understanding the Taffs, or their mother for them, or in her own right solely, continued their possession of the land for the period and in the manner shown by the evidence, and claiming to own and exercising acts of ownership only as to the estate described and conveyed by the deed from Laird and others to Susan A. Taff, then I charge you that such possession would, as to bona fide purchasers for value, without notice, of the deed to M. Taff, be referable rather to the deed to Susan A. Taff, and would not fix constructive notice upon such purchaser of the prior unrecorded deed made to M. Taff."

Tillman, Bradley & Morrow and Geo. L. Smith, all of Birmingham, for appellant.

F. A. Gamble, of Jasper, for appellees.

McCLELLAN J.

The action is statutory ejectment to recover the mineral interest only, instituted by appellees against appellant.

The common source of title asserted, respectively, was James I. Laird. In 1871 he conveyed, plaintiffs claim, the entire interest in the land described in the complaint to Michael Taff. Taff moved on the land, and there died in 1874. It not appearing that Taff's estate was insolvent, allowing the presumption of its solvency, under the statutes then in force (Acts 1872-73, pp. 64-69), this tract must be "held, considered, and treated as a part of the real estate of the decedent without reference to this act." Accordingly the title vested in the heirs (children) of M. Taff, subject to the widow's (Susan Taff's) rights as such, and the right, under the statute cited, to retain possession, along with the children of the household, until the solvency of the estate was determined. Dower does not appear to have ever been assigned to the widow; nor does it appear that the financial status of the estate was ever judicially ascertained. In consequence, the assumption being that title passed under the deed to M. Taff, the widow's right to possession throughout the long period since 1874, through 1899, is apparent; and such possession, in the absence of proof to the contrary, was in subordination, not hostile or adverse, to the title vested in the heirs upon M. Taff's decease. Robinson v. Allison, 97 Ala. 596, 12 So. 382, 604.

Pending this possession, the widow received, for a recited valuable consideration, a conveyance from James I. Laird of the surface interest only in this land; the mineral being reserved in the instrument.

The deed of 1871 to M. Taff was recorded in 1908. That of 1881 to the widow was recorded in 1902. Defendant (appellant) bought the mineral in the land from Rucker and others November 3, 1899. The defendant invoked on the trial the protection accorded purchasers for value, and without notice, against unrecorded instruments and equities. That doctrine is again pressed here.

It is insisted for defendant (appellant) that no such possession existed, at the time of the purchase, as laid upon the defendant the duty of inquiry; but, if so, the observance of that duty of inquiry would not have availed to discover the existence of the unrecorded deed from Laird to M. Taff.

The possession of land essential to give rise to that duty of inquiry on the part of a purchaser need not be such an adverse possession as, if maintained for the necessary period, would ripen into title. Smith v. Jackson, 76 Ill. 254. It is generally sufficient if it is such a visible possession as would naturally suggest inquiry upon the part of an ordinarily prudent person intending to purchase, though it must be open, notorious, and exclusive, as regards the purchaser's vendor, and, in consequence, unambiguous and unequivocal. O'Neal v. Prestwood, 153 Ala. 443, 449, 450, 45 So. 251; Simmons Creek Co. v. Doran, 142 U.S. 417, 442, 443, 12 S.Ct. 239, 35 L.Ed. 1063; 23 Ency. Law, pp. 504-506. The annual cultivation of land is one of the recognized evidences of a possession giving rise to the duty of inquiry by an intending purchaser. Knox v. Thompson, 1 Litt. (Ky.) 351, 13 Am. Dec. 246; Lyman v. Russell, 45 Ill. 281; Roussain v. Norton, 53 Minn. 560, 55 N.W. 747. It is the fact of the possession being "out of the vendor and held by another" that inspires the duty of inquiry imposed by law on the intending purchaser. Powell v. Allred, 11 Ala. 318; Strickland v. Nance, 19 Ala. 233; Tutwiler v. Montgomery, 73 Ala. 263, 268, 269 (see, for qualification of this decision on the particular point there noted, Griffin v. Hall, 129 Ala. 289, 29 So. 783); McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418; Brunson v. Brooks, 68 Ala. 248.

With respect to the matter of actual possession, Mr. Perkins, the land agent of the appellant in 1899 and subsequently, testified: "The first time I was on the land was in 1899, prior to the execution of this deed [to the appellant, we interpolate]. There was no one living on the land at that time. I found a small portion of the land that looked like it had been grown in grain of some kind, oats or wheat; but I don't think there was anything else in cultivation. Possibly some of it was used for a pasture, about six or seven acres. The land was in woods, except a small portion of it had been cleared and grown up again. The land lying out had become badly washed. There were no buildings on it. There had been a house on it; but was not there at that time. * * * I did not say there was growing crop on the land; I said the stubble was there. The land did not look as if it had been cultivated. I said it looked like it had had a crop of grain on it, and the stubble was still there. That was after the execution of the deed. * * * I was first on this land in 1899, about the last of July, or between the 1st of July and the last of August, and again between that time and the 1st of November. * * * The land looked as if something had been sown on it that year, and had been cut off; it had the appearance of having been cut off that year."

No possession of the defendant's vendors being shown, there is no room for doubt, we think, that the stated duty of inquiry arose. If...