Taylor v. Thomas
| Decision Date | 09 November 1923 |
| Docket Number | 2 Div. 732. |
| Citation | 95 So. 475,209 Ala. 48 |
| Parties | TAYLOR ET AL. v. THOMAS. |
| Court | Alabama Supreme Court |
Rehearing Granted Jan. 25, 1923.
Appeal from Circuit Court, Marengo County; R.I. Jones, Judge.
Bill by C. C. Thomas against Gertrude Taylor and Charles Forman. Decree for complainant, and respondents appeal. Affirmed in part, and reversed and rendered in part.
I. I Canterbury, of Linden, Pettus, Fuller & Lapsley, of Selma and Hyde, Westbrook & Watson, of Chicago, Ill., for appellants.
Wm Cunninghame, of Linden, for appellee.
This is a bill filed by Mrs. C. C. Thomas against Mrs. Gertrude Taylor and Charles Forman to remove and have canceled as a cloud on the title to the land of complainant a deed and mortgage. The deed purports to have been signed by complainant, and to convey to respondent Mrs. Taylor the land, 535 acres; and the mortgage was afterwards executed by Mrs. Taylor and her husband, E. E. Taylor, to respondent Forman to secure $3,000 cash borrowed by her from him.
The complainant claims the deed is void, and seeks to have it canceled and annulled because she rented the land to E. E Taylor, husband of Mrs. Taylor, for $400 annually during her life, on September 9, 1916, beginning with year 1917; he gave her a rent note that day, and she signed a printed blank form without description of land or name of grantee therein, or consideration, to be filed out by him as a lease on the land to him as per terms of the rent note given here by him; that, instead of doing so, it was falsely filled out as a warranty deed, conveying the land to respondent Mrs. Gertrude Taylor, his wife; and that the deed is void also because on the day it purports to have been executed by her she was a married woman, and her husband, H. C. Thomas, did not join in the execution of the deed, and they were residents of Alabama, and he was of sound mind, had not abandoned her, and was not then under a conviction for crime for a period of two years; and, that deed being void, the defendant Forman could not be protected as an innocent purchaser or mortgagee.
The defendants deny that the deed and mortgage are void. They aver the deed was executed and delivered by complainant after it was fully filled out, or with authority for it to be, with full understanding between her and E. E. Taylor that it was a deed conveying the land to defendant Gertrude Taylor for a recited consideration of $1,000 cash and love and affection; and defendant Forman says he knew and heard of no other consideration until after this suit was filed, when he was informed that the true consideration of the deed was "the support and maintenance of complainant by E. E. Taylor for the balance of her life." The defendant Forman also pleads and answers that he is a bona fide mortgagee or purchaser of the land without any actual or constructive notice or knowledge of any matter or things set forth in the bill of complaint which would invalidate the deed; that Gertrude Taylor was in possession of the land under the deed when the mortgage was executed; and that H.C. Thomas, husband of complainant had abandoned her several months prior to the execution of the deed, and was not living with her at the time.
The court rendered decree granting the complainant the relief prayed for, declaring the deed and the mortgage null and void as against the complainant, and directing that they be canceled on the record as invalid on the land of the complainant and thereby removed as a cloud on her title to the land.
This cause has been before us on decree overruling demurrers to the bill of complaint. 202 Ala. 291, 80 So. 356. The law applicable to the facts presented by the bill was there declared.
All of the witnesses were examined orally in open court. E. E. Taylor, husband of Gertrude Taylor, died in February or March, 1917. Where the evidence in a cause is oral, the trial court having seen the witnesses and heard them testify, the finding of facts by the trial judge will not be disturbed by us, unless his conclusions are clearly contrary to the great weight of the testimony. Bell v. Blackshear, 206 Ala. 673, 91 So. 576, headnote 3; Thompson v. Collier, 170 Ala. 469, 54 So. 493.
"If a deed is void a subsequent innocent purchaser is not protected, but if it is merely voidable he is." 13 Cyc. 591. Barden v. Grace, 167 Ala. 455, 52 So. 426, Ann. Cas. 1912A, 537; "A deed without a grantee named therein is void." Barden v. Grace, 167 Ala. 456, 52 So. 426, Ann. Cas. 1912A, 537, 13 Cyc. 540.
However, in Barden v. Grace, 167 Ala. 456, 52 So. 426 (Ann. Cas. 1912A, 537) this court wrote:
In this case on former appeal, Forman v. Thomas, 202 Ala. 291, 80 So. 356, this court held that the principle declared above had direct application to the facts averred and presented in this bill of complaint.
An innocent mortgagee of real estate, for a cash loan consideration for the execution of the mortgage, is the same in law as a vendee or purchaser of the absolute title, and is entitled to the same protection. Alexander v. Livingston 206 Ala. 186, 89 So. 520, headnote 8; Coleman v. Smith, 55 Ala. 369; Rogers v. Adams, 66 Ala. 600.
The testimony of complainant and her witnesses indicate this deed was accidently discovered, and its contents first made known to her shortly after E. E. Taylor's death; and this suit was soon afterwards commenced. The complainant has been married twice. Her first husband was W. F. Perkins. This land belonged to him, and he conveyed it to her in 1887. They had no children. E. E. Taylor was his nephew, and was reared from youth to manhood by complainant and Mr. Perkins. The complainant is 73 years of age. She called E. E. Taylor "son." He was a lawyer; she trusted him with her business interests and looked to him for advice. He executed and delivered to her on September 9, 1916, a rent note for this land, by which he agreed to pay her on November 1, 1917, and on that date "each year thereafter as long as she shall live, four hundred dollars for rent of her land in Marengo Co., Ala.," and he agreed also "to pay all tax on the property and all insurance on the buildings."
This rent note and the deed bear the same date; they were executed at the same time and place, at her home; the rent note was written there, and U. Canterbury was a subscribing witness to both instruments. The eyewitnesses to the execution of the rent note and the deed were examined. Their testimony indicates a lease transaction in regard to the land between E. E. Taylor and complainant. The rent note was written, signed, and delivered by E. E. Taylor to complainant. The testimony of the witnesses present clearly indicate no deed was mentioned, but the instrument signed by complainant was to be a lease of the land; that it was partly blank, partly printed, with no name of the grantee therein when executed by her. E. E. Taylor was to be the lessee in it for the land at the annual rent of $400 during the life of complainant. This original deed is before us. It is a printed warranty form of deed. The description of the 535 acres of land is written in it with a typewriter. The other blank places are filled out in writing with pen and ink. The ink used to write in the blank places is different from the ink used by complainant and the subscribing witnesses in writing their names. The words "I, C. C. Thomas," in the body of the deed, are in different ink and handwriting from the other writings in the deed. The consideration mentioned in it is love and affection and $1,000. Gertrude Taylor is the grantee, and complainant is the grantor in it. A regular acknowledgment by complainant before a justice of the peace appears on the deed as if taken September 9, 1916. The undisputed evidence shows no acknowledgment was taken on that day. There is evidence that it was taken by the justice of the peace two or more weeks afterwards; and there is evidence to the contrary, that it was never taken at any time, and that it is a false certificate of acknowledgment. The evidence is in clear conflict as to whether there was any appearance before the officer, and whether there was any acknowledgment at all made. This was a question for the court to decide under the conflicting oral evidence of the witnesses before him. This court in Grider v. Am. Freehold Land & Mortg. Co., 99 Ala. 291, 12 So. 779 (42 Am. St. Rep. 58) declared this rule:
...
To continue reading
Request your trial