Vizard v. Robinson

• Citation: 181 Ala. 349,61 So. 959
• Parties: VIZARD v. ROBINSON.
• Decision Date: 08 April 1913
• Court: Supreme Court of Alabama

61 So. 959

181 Ala. 349

VIZARD v. ROBINSON.

Supreme Court of Alabama

April 8, 1913

Appeal from Chancery Court, Coosa County; W.W. Whiteside Chancellor.

Bill by Allen Robinson against Anthony Vizard to quiet title to timber interest in land. Decree for complainant, and respondent appeals. Reversed and rendered.

The deed mentioned in the opinion is as follows: "That for and in consideration of the sum of $200.00 to the undersigned Allen Robinson and wife, M.S. Robinson, in hand paid by William Cooper, we, the said Allen Robinson and wife, M.S Robinson, do hereby grant, bargain, sell and convey unto the said William Cooper, the following described real estate, to wit: All of the timber of every kind which measures as much as 10 inches at the stump, situated and standing on the following described land: [Here follows the description.] Together with the right to go upon and across the said land for the purpose of removing said timber therefrom, and also the exclusive right to build and construct tramroads or other roads on or across said land, for the purpose of removing said timber, or any other timber of the said W.M. Cooper. That the rights above conveyed shall continue for a period of eight years from date of this instrument, and no longer." Then follows the ordinary covenants of seisen right to convey, and warranty. This deed was dated March 23 1903. The bill alleges the conveyance from Cooper to the Vizard Investment Company, and from the Vizard Investment Company to Anthony Vizard, and the prayer seeks to declare the claim, interest, and title of said Anthony Vizard in and to the timber growing on said land to be void and of no effect and removed as a cloud on orator's title. He also seeks to declare the other deed void and of no effect, and to remove them as cloud on title.

Stevens, Lyons & Dean, of Mobile, for appellant.

George A. Sorrell, of Alexander City, for appellee.

McCLELLAN J.

Bill to quiet title, with particular reference to the timber interest therein. Code, § 5443 et seq. There are two major questions presented for review: First, whether an officer concerned, as will be later stated, is competent to take an acknowledgment of a conveyance of an interest in land occupied as a homestead by the grantor and his wife; second, whether the deed, which (omitting the calls of the land) the reporter will set out, expressed a limitation upon the estate granted, or a covenant merely.

As respects the validity vel non of the instrument, as that question is affected by the alleged want of competency of the officer to take the acknowledgment of the parties, the attack here made is direct, not collateral. Hayes v. B. & L. Asso., 124 Ala. 663, 26 So. 527, 82 Am.St.Rep. 216; Monroe v. Arthur, 126 Ala. 362, 28 So. 476, 85 Am.St.Rep. 36; National B. & L. Asso. v. Cunningham, 130 Ala. 539, 30 So. 335.

These propositions are settled in this state: "An efficacious acknowledgment not only renders the instrument self-proving, if seasonably recorded, but it imports a verity against which none can *** complain, unless it is for duress or fraud. It is a quasi judicial, if not judicial, act of an officer, and his certificate cannot be questioned, if his jurisdiction was obtained, except on the grounds stated." Morris v. Bank of Attalla, 153 Ala. 352, 357, 45 So. 219, 221; Chattanooga Nat. B. & L. Asso. v. Vaught, 143 Ala. 389, 39 So. 215; Sellers v. Grace, 150 Ala. 181, 43 So. 716; Griffith v. Ventress, 91 Ala. 366, 374, 375, 8 So. 312, 11 L.R.A. 193, 24 Am.St.Rep. 918; Amer. Mtg. Co. v. Thornton, 108 Ala. 258, 19 So. 529, 54 Am.St.Rep. 148; Alford v. First National Bank, 156 Ala. 438, 47 So. 230, 22 L.R.A. (N.S.) 216.

In Hayes v. Sou. Home Ins. Co., 124 Ala. 663, 667, 26 So. 527, 530 (82 Am.St.Rep. 216), it was ruled that the public policy involved refutes the competency of an officer "financially interested in the conveyance" to take and certify an acknowledgment, and that the doctrine has a peculiar force in its application to cases where the title to the homestead is to be affected and the certification of the separate acknowledgment of the wife, in a particular way and form, is a condition precedent to the transmission of interests under the conveyance. The doctrine was recently reiterated in Byrd v. Bailey, 169 Ala. 452, 53 So. 773, Ann.Cas. 1912B, 331.

Robinson (appellee) was the owner in fee of the lands which were his homestead.

Cooper, appellant's predecessor in asserted right, was the grantee in the conveyance.

Paragraph 8 of the bill, the only section particularly necessary to be considered in this connection, is as follows:

"Your orator would further show unto your honor that on the 23d day of March, 1903, E.V. Jones, the notary public before whom your orator and his wife, M.F. Robinson, acknowledged said conveyance as shown by Exhibit A hereto attached was an attorney at law, practicing law at Rockford, in Coosa county, Ala., and on said date and at the time said conveyance was acknowledged by your orator and his wife, M.S. Robinson, before the said E.V. Jones, he was the attorney for and the agent of said W.M. Cooper, the grantee in said conveyance, and as such attorney and agent negotiated and perfected the sale of said timber by your orator to the said W.M. Cooper and was the active agent, acting for and in behalf of said W.M. Cooper, who bought said timber from your orator and prepared the conveyance above described from your orator to said W.M. Cooper and was the paid agent and attorney for the said W.M. Cooper to purchase for the said W.M. Cooper the said timber from your orator, and obtained from your orator a conveyance to the same.

"Your orator would further state, charge, and aver that the said deed conveying to the said W.M. Cooper the said timber, being thus acknowledged before the said E.V. Jones, who was then and there the active agent, attorney for said W.M. Cooper, and made said contract of purchase with your orator for the said Cooper, was and is void and of no effect and is insufficient in law to pass any title out of your orator into the said W.M. Cooper; and your orator further charges and avers that, the said conveyance being void, the said W.M. Cooper, Vizard Investment Company, nor the respondent, Anthony Vizard, has ever obtained any right, title, or interest in or to said timber; he is claiming openly, notoriously to own said timber, which claim of the respondent is a cloud on the title of your orator to his said land and is doing him a great injustice."

The agreed statement of facts on this point contains this:

"(1) That at the time that the sale and purchase evidenced by the timber deed which is an exhibit to the original bill in this cause was being negotiated, and at the time of the execution of the said deed, it was verbally agreed between the vendors and vendee that the right and title to said timber so conveyed by said deed was to last for a period of eight years from the date of said deed, and that at the expiration of said eight years, if the timber was not cut and removed from said land, all right to the same was forfeited as to the buyer, and the same reverted to and was the property of the seller after the expiration of said term of eight years; that said agreement should be evidenced by writing in the said deed, the provision there appearing which reads as follows: 'That the rights above conveyed shall continue for a period of eight years from the date of this instrument, and no longer.'

"(2) That, at the time E.V. Jones took the acknowledgment of the vendors that they executed said deed, M.S. Robinson was the wife of Allen Robinson, and they were living on and occupying as a homestead the land described in the original bill as being in section 21; that at said time the said E.V. Jones was the agent and attorney for the vendee to make contracts of purchase of timber for him in Coosa county, Ala., including the contract and purchase as shown by the deed above referred to; that it was a part of his contract to purchase timber, obtain a deed from the seller to

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