Veitch v. Woodward Iron Co.

• Decision Date: 10 May 1917
• Docket Number: 6 Div. 368
• Citation: 76 So. 124,200 Ala. 358
• Parties: VEITCH et al. v. WOODWARD IRON CO.
• Court: Alabama Supreme Court

76 So. 124

200 Ala. 358

VEITCH et al. v. WOODWARD IRON CO.

6 Div. 368

Supreme Court of Alabama

May 10, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Action by James Veitch and others against the Woodward Iron Company. From judgment for defendant, plaintiffs appeal. Affirmed.

Theo J Lamar, of Bessemer, and Henry Upson Sims, of Birmingham, for appellants.

E.J Smyer and V.J. Nesbit, both of Birmingham, for appellee.

THOMAS J.

The suit was brought on the 13th day of January, 1916, the bill praying to have declared a trust in land, and for an accounting. Demurrers were sustained to the bill as amended and from the decree in that behalf the appeal is taken.

The averred facts are that Isaac Veitch, the father of appellant and five other children, purchased and paid for 230 acres of land (including that in question) in Jefferson county, Ala., from one R.C. Rockett, and was put in possession of the same by his vendor. No conveyance, however, was given the said Isaac by his vendor on the completion of the payment of the purchase money. After the death of Isaac Veitch, on December 24, 1881, the plaintiff's mother, Mary, on her petition, was on March 7, 1882, appointed administratrix of her deceased husband's estate; said petition for letters to the probate court alleging, among other things, that the decedent left certain real and personal property. This administration was never finally settled, as shown by the records of said court; and no exemptions, homestead or dower, appear to have been allowed or set apart in said court, as in such cases provided by the statutes. On October 24, 1899, said administratrix reported to the probate court that she had received from her husband's estate only certain personal property, which she claimed to be exempt to her as the widow of deceased, and prayed that she be discharged as such administratrix. This petition does not appear to have been passed upon; no formal decree to that effect was ever entered.

It is further averred that complainants, with their father and mother, had lived upon said lands as a home, and that complainants were entirely ignorant, until very recently, of their father's "claim and right of ownership thereto and of the nature of his title, and that there was a descent cast upon them at his death."

A warranty deed to 220 acres of land, including the lands in question, is of record, dated May 22, 1882, it purporting to have been acknowledged on May 17th, of that year, and to have been executed before witnesses on October 14, 1879, by said R.C. Rockett and wife to Mary Veitch. The averment of the bill as to the delivery of this deed is that:

"If indeed it was signed by the grantors, and witnessed on that date, as it purports to have been, it was never delivered prior to May 17, 1882."

On the 20th day of May, 1882, Mary Veitch executed to William J. Mims a conveyance to the 60 acres of land in question, reciting as a consideration that on April 4, 1880, a judgment was rendered in the circuit court against Isaac Veitch in favor of said Mims on a suit commenced August 25, 1879, and in which service was perfected on said Veitch September 16, 1879; that said Veitch had purchased these lands before the commencement of said suit; the giving of bond by the vendor thereof, conditioned that he would make title to the land to Veitch upon the payment of the purchase price; the payment of the purchase money before, and on October 14, 1879, when Veitch procured his grantor to make a deed to these lands to his wife, Mary Veitch, "without any consideration except mutual love and affection." It was further recited in said deed that an execution had regularly issued on said judgment on May 1, 1880, and since regularly issued without the lapse of an entire term; that the deed to Mary A. Veitch had never been recorded until after the said Mims had so acquired a lien on said land as such judgment creditor; and that he had no notice of the said deed (meaning that from Rockett to Mary Veitch). The full payment of said judgment was the recited consideration for the conveyance; and the description of the lands conveyed was of those described in the bill, and indicated in general terms as follows:

"The same being all of the said lands purchased as aforesaid by the said Isaac Veitch, and conveyed to the undersigned, except the homestead of the undersigned, which consists of 160 acres."

The reporter will set out the deed appearing as Exhibit B on page 9 of the record.

It is averred that the lands sued for are claimed by appellee through mesne conveyances as follows: Deed from said Mims to M.L. Porter of July 12, 1884; deed from Porter to Woodward Iron Company, a body corporate under the laws of Alabama, of June 21, 1898; and deed from the said Alabama corporation thereafter to the Woodward Iron Company, a body corporate under the laws of Delaware.

The specific averment of the bill by which complainants sought to explain their delay in bringing suit was in short:

"That in infancy they had been informed by their mother that the land was hers, and that she had disposed of it, and they never questioned the truth thereof; nor did they discover the fraud upon them until the month of February, or March, 1915, when they were informed of their rights by a relative who by accident discovered the fraud therein recited."

Complainants further offered to do full equity themselves, as might be found just and right in the premises.

It is charged in the bill:

"That the defendant cannot be heard to say that it and those under whom it claims have enjoyed 10 years' adverse possession of the said lands under claim of ownership; for there have not been 10 years of actual occupancy of said lands by the defendant and its predecessors adverse to your orators. Nor can the defendant be heard to say that it denies your orators' rights in the premises, since the defendant and its predecessors, from your orators' said mother down, had full notice from the records, as well as from the said deed from your orators' said mother to Mims, that your orators had an equity in said lands, and that the said holders of the legal title to the lands from your orators' said mother to the defendant were merely trustees for your orators' benefit, and that, if the said equity was unknown to your orators, they could assert the same as soon as they should find it out. Nor can the defendant be heard to say that 20 years have barred your orators' equity. Since there was no person during a great part of the time to assert your orators' rights but their said mother, the administratrix, and she had herself committed the first illegal act against them."

The several questions thus presented are: (1) Did the bill as amended contain equity? (2) If it set up an equitable title to the lands in complainants and others, was respondent shown to have had notice thereof, or notice of facts which, if followed up, would have resulted in knowledge of complainants' interest? (3) Or were complainants guilty of laches, or prevented by the statute of limitations from asserting their claim?

While the recitals in conveyances are prima facie true as to all parties thereto and privies in estate thereunder, such recitals are not binding on strangers or those who do not hold under and by such chain of title. Naugher v. Sparks, 110 Ala. 572, 18 So. 45; Smith v. Steiner, 172 Ala. 79, 55 So. 606; Jackson v. Tribble, 156 Ala. 480, 47 So. 310; Johnson v. Wood, 125 Ala. 330, 28 So. 454; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3; Harton v. Little, 176 Ala. 267, 57 So. 851.

What effect had the recitals in the deed from Mary Veitch to William J. Mims, recorded May 22, 1882, as to giving notice of facts of complainants' equity, such as would put on inquiry parties and privies in estate under said deed?

In Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886, Mr. Justice Somerville has collected the authorities; and it is there held that the record presence in the chain of title of a mortgage containing a power of sale charged subsequent purchasers with the duty of inquiry to ascertain whether there had been a foreclosure under the power as to the lands described in the mortgage.

In Gamble v. Black Warrior Coal Co., 172 Ala. 669, 672, 673, 55 So. 190, Mr. Justice Mayfield said:

"It is also 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. Whatever is sufficient to put one on his guard and call for inquiry is notice of everything to which the inquiry would lead.

"*** The complainant certainly had knowledge of facts sufficient to elicit inquiry as to the source of appellee's title, and the facts are undisputed that he could and would have ascertained this source had he instituted any inquiry. If the evidence of his and Brotherton's grantors (the patentees) is to be believed Brotherton had actual notice of the deed from the patentees to Long before and at the time the patentees conveyed to him as trustee; their evidence being that they conveyed to Brotherton, as trustee, in order to cure a defect in the conveyance by them to Long, and that Brotherton knew,

and represented to them, that such was the purpose of the conveyance to him."

Mr Warvelle (Vendors, § 263) declares that it is difficult if not impossible to lay down any general rule as to what facts will in every case be sufficient to charge a party with notice or put him on inquiry; that a purchaser buying real property, of the title to which there must be evidence in writing is chargeable with notice of any infirmity of his title which the writing discloses. 1 Warvelle, Vendors (2d Ed.) § 262; Larkin v. Haralson, 189 Ala. 147, 66...