Sulzbacher v. Campbell

• Decision Date: 11 April 1929
• Docket Number: 7 Div. 866.
• Citation: 121 So. 706,219 Ala. 191
• Parties: SULZBACHER ET AL. v. CAMPBELL.
• Court: Alabama Supreme Court

121 So. 706

219 Ala. 191

SULZBACHER ET AL. v. CAMPBELL.

7 Div. 866.

Supreme Court of Alabama

April 11, 1929

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action of ejectment by J. L. Sulzbacher and N. N. Burns against A Cliff Campbell. Judgment for defendant, and plaintiffs appeal. Affirmed.

Hugh Reed, of Center, for appellants.

F. M Savage, of Center, and Motley & Motley, of Gadsden, for appellee.

GARDNER J.

Statutory action of ejectment by appellants against appellee for recovery of a storehouse and lot situated in Center, Ala more particularly described in the complaint. The appeal is from a verdict and judgment in favor of defendant.

Both parties to the cause claim title through a common source, one W. H. Cather. Plaintiffs are judgment creditors of said Cather, having recovered judgment in the Cherokee circuit court on July 29, 1926, a certificate of which was duly recorded in the probate office of that county on August 26, 1926.

The suit, upon which the judgment was based was begun on January 1, 1926, and sought recovery for a sum "due by account of December 15, 1925." At the execution sale plaintiffs were the purchasers of the property here sued for; deed being duly executed to them on December 12, 1927. Defendant claims title through a deed executed to him on April 21, 1926, by said W. H. Cather to the property sold, but not recorded until December 21, 1926. Plaintiffs insist, therefore, that, although defendant's deed antedated their judgment, yet a failure to duly record the same rendered it void as to them under section 6887, Code of 1923. The burden of proof was therefore upon defendant to "show actual notice to plaintiffs at the time of, or prior to, obtaining their judgment." Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101.

"From the earliest decisions of this Court construing unrecorded conveyances void as to 'purchasers without notice,' etc., it has been held that actual notice is equivalent to the constructive notice afforded by the registration of the conveyance. The whole object and design of the statute is said to be to give notice of the existence of the conveyance. *** It has likewise been repeatedly held that, where one is in possession of the premises, the purchaser of such premises is charged with an implied notice of the nature of his title. *** It is equally well settled law in this State that whatever is sufficient to put a party on inquiry is enough to charge him with notice. Means of knowledge may be equivalent to knowledge." Alexander v. Fountain, 195 Ala. 3, 70 So. 669. "The actual open possession of lands is sufficient to put others on inquiry and constitutes notice of claim of title in the holder." Wiggins v. Stewart Bros., supra; Wells v. American Mortgage Co., 109 Ala. 430, 20 So. 136.

The facts adduced on the trial were largely directed to the issue of possession on defendant's part and its sufficiency to give notice within the meaning of the above-noted authorities.

The evidence for defendant tended to show a change of possession from W. H. Cather to himself immediately upon the sale of the property to him. Cather had moved from Center, and defendant's evidence tended to show a use of the property by himself for storage purposes, and complete dominion over the same. Though he did not occupy the store for conducting a business therein until the first of the year 1927, there is evidence he was at the store "every day practically" and was in open and continuous use of the premises as above indicated.

Plaintiffs offered evidence to the contrary, but a detailed review of the testimony upon this question of fact would serve no useful purpose. Suffice it to say the evidence was such as to make the issue one for the jury's determination, and the affirmative charge requested by plaintiffs was properly refused.

The portions of the oral charge to which exceptions were reserved, when read in connection with the entire charge, were in accord with the authorities above noted, and were free from error.

Very clearly, the fact that plaintiffs resided in another state is without influence upon the above-noted rules of law governing the law of notice by open and notorious possession, as disclosed by the above-noted authorities. We may add also in this connection that the...