Fuller v. Sockwell

SOMERVILLE, J. The bill is filed to have a sale for division of certain land in which it is alleged that complainant owns a three-sixteenths interest and the three respondents the -remaining interest. The land -in question was the homestead of one Tom Fuller, upon whose death in 1905 it was vested in fee simple in his widow and seven minor children, under the homestead exemption statutes then in force. In 1917 and 1918, the widow, Mrs. O. A. Fuller, executed several mortgages on the place to complainant, who foreclosed the last one and himself purchased at the foreclosure sale. The interest of Mrs. Fuller thus acquired is the interest here asserted by complainant. [1] Respondents deny that complainant acquired any interest under and by virtue of said mortgage, because, as they claim, their *526 mother sold and transferred her interest to her children by a parol agreement made with them immediately after their father’s death, in consideration of their paying off a balance of the purchase price still due on the place. Conceding, without deciding, that the evidence shows a parol sale by Mrs. Fuller to her children which was sufficiently executed to pass to them an equitable title under the statute of frauds, yet that transaction cannot affect the complainant, who was a purchaser for value under his mortgage. [2] It is true that actual possession by a purchaser of land is ordinarily sufficient notice to all the world of his claim of title. Griffin v. Hall, 111 Ala. 601, 20 South. 485. But this rule cannot be applied to a’ parol or unrecorded sale by a tenant in common to his cotenant, since each tenant is entitled to possession, and possession by one or more of the tenants gives no warning that other co-tenants have been ousted or divested of their interest. [3] Moreover, the evidence shows without dispute that Mrs. Fuller continued in possession after her alleged sale just as she had done before, and that as late as 1917-18 she was leasing the place and controlling the rents exactly as if she were the owner. The fact that she had a private understanding with her children, that her possession was permissive and under their authority, cannot affect complainant unless he had notice of it; and there is not the slightest evidence that he had any such notice. Under the evidence the trial court could not do other than grant the relief prayed for, and the decree will be affirmed. Affirmed. ANDERSON, C. J., and McCLELLAN and THOMAS, JX, concur.