Webb v. Elyton Land Co.

HEAD, J. This is a bill by the Elyton Land Company against Norman Webb to quiet titles to the S. E. i of N. W. i section 6, township 18, range 2 west, in Jeffercon county, Ala. The land lies on what is known as South Highlands, in and adj acent to the city of Birming — 477 — ham. Many years ago, Elijah Brown died owning a body of about four hundred acres of land, including that in controversy. He resided on that tract all his life, or for many years. He left his widow, Nancy Brown and a son, W. W. Brown, besides other children. By his last will he devised all his land to his widow for life, with remainder, in fee, to his son, W. W. Brown. Both devisees still survive. On January 10, 1870, W. W. Brown conveyed his estate in the land in controversy, with warranty, to Joab Bagley. On September 24th, 1872, Bagley and wife sold and conveyed to the complainant, the Elyton Land Company. On November, 15th, 1886, the widow, Nancy Brown, conveyed her estate in this land to the complainant. On July 23d, 1883, W. W. Brown and wife executed a deed to the forty acres in dispute to said Norman Webb, for the consideration of one hundred dollars, purporting to convey the entire fee; and he, Webb, now asserts title by virtue of this deed to an estate in remainder, dependent upon the life estate of Nancy Brown, paramount to the title of the Elyton Land Company. There are three defenses set up in the answer, and relied upon on the trial: First: That the deed of W. W. Brown to Joab Bagley, relied upon by the complainant, is in fact no deed, but a forgery; and if signed by Brown, thei’e was no attesting witness nor acknowledgment, in consequence of which the instrument is inoperative as a conveyance. Second : That the deed is void on its face for insxxfficiency of description of the land, which is described only by sectional subdivision, township and range, omittipg the county, State and land district, in which the land is situated. Third: That the respondent is a purchaser for valuable considerations without notice. 1. We have carefully examined the evidence, and have no doubt that the deed to Bagley is genuine, and was executed, attested by a subscribing witness, and delivered, on the day of its date. This is so well established that it is unnecessary to go into the evidence or enter upon any discussion of it. 2. The Bagley deed possesses the infirmity in the description of the land, above mentioned. The evidence shows, without dispute, that W. W. Brown, at the date of the conveyance, owned the land, lying in Jefferson county, Alabama, conforming, in point of section, town — 478 — ship and range, to that described in the deed; and had owned it since the death of-his father, years before ; and it is shown by the testimony of a number of witnesses, his relatives and intimate acquaintances of long standing, that he was never known to own, or claim to own, any lands in any other county or State. He had lived all his life very near to the land in dispute, in Jefferson county, and his grantee, Bagiey, was an old resident and citizen of that county, owning lands therein located, not remote from the land in question. These facts raise the question of law, whether or not, the insufficiency apparent upon the face of the deed, may be cured by reference to the extrinsic circumstances stated. We feel constrained to hold that the question has been settled by past adjudications of this court, whatever doubts may be entertained of the correctness of the rule which those decisions declare. In Chambers v. Ringstaff, 69 Ala. 140, the very question arose upon a mortgage of realty, and after full discussion by Chief Justice Stone, it was expressly held, that when it was admitted or found by the jury that the mortgagor owned the lands in dispute, when the mortgage was made, in the absence of other proof, that she owned or claimed other lands falling within the description, it then became the duty of the court to pronounce the mortgage a valid conveyance. This conclusion was reached without consideration of the fact, that the mortgage showed on its face, that it was executed in Montgomery county wherein the lands in dispute lay and that the parties resided in that county. In Meyer Brothers v. Mitchell, 75 Ala. 475, Judge Somerville arguendo and in approval of Chambers v. Ringstaff, 69 Ala. 140, supra, used the following language, treating of ambiguities : “The general rule everywhere recognized is that, mere verbal declarations as to what was intended are not admissible in explanation of the terms of the writing itself. A just exception to this rule, however, is found in parol evidence going to the identification of the subject-matter, a principle which seems to have been much favored by the past decisions of this court. In Chambers v. Ringstaff, 69 Ala. 140, a description of land in a mortgage void on its face for ambiguity was allowed to be aided by oral evidence showing that the grantor owned and resided on certain lands in this State — 479 — which were known and described by the same numbers as those employed in the mortgage. The ambiguity there arose from the fact that the description employed in the instrument was on the face of it equally applicable to many tracts of land located in various government surveys. The conclusion was reached upon the principle that parol evidence was admissible to show the surrounding or attendant circumstances under which the contract was made, and to identify the subject-matter to which the parties referred.” In DeJarnette v. McDaniel, 93 Ala. 215, the description of the land in the mortgage was of the same character as that in the present deed. The court said: “The plaintiffs objected to the introduction of the mortgage on the ground of uncertainty and ambiguity in the description. It was then proved that at the time the mortgage was executed, and for several years before that time, Mrs. Dicey De Jarnette lived on the land ; that she and her son lived together upon it until his death in 1854, and that she owned no other lands. This brought the question directly within the rule declared in Chambers v. Ringstaff, 69 Ala. 140. The circuit court did not err in receiving the mortgage deed in evidence.” We have given due consideration to the elaborate argument and array of authorities presented to us by the appellant’s counsel, impeaching with much force the rule declared in these decisions. We realize the difficulty and doubt which surround the question. There is contrariety of decision upon it in the States. The' briefs collect the authorities. The rule we have adopted commends itself for its conversatisna and justice. Howsoever vulnerable it tnay be to the attack of technical and refined principles of law upon the subject of ambiguous writings, we are not so well satisfied that it is unwise as to be disposed to depart from it. 3. The Bagley deed was not recorded until 1886, and the appellant claims to be a bona fide purchaser of the estate of W. W. Brown, in remainder, for value without notice. His purchase was negotiated and his deed procured by Tipton Bradford as his agent duly authorized in the premises. Bradford was a practicing lawyer in Birmingham, Ala. Brown lived in or just adjacent to that city. Samuel Thompson living in Birmingham was related by marriage to Brown. - Bradford procured — 480 — Thompson, as a friendly act, to negotiate with Brown, for a deed. What occurred between Thompson and Brown appears in Thompson’s testimony, and we give it as he gave it. He says : “I was authorized by Mr. Bradford to see Mr. Brown and ascertain what he would take for his interest and that of his mother in the said land, * * * and said Bradford told me that he wanted to buy Brown’s interest in the land. He requested me to ascertain from said Brown what he would take for his interest in the land. I did, as his agent, ask W. W. Brown what he would take for his remainder estate in said land. Brown said that if he had any interest in the land he did not know it, and that he could not sell a thing he did not own. I returned to town and informed Mr. Bradford of my mission and its results, and Mr. Bradford requested me to again see Brown in regard to this transaction ; and within two or three days I again went, to the storehouse of Mr. Brown, and again told him that Mr. Bradford said that the title of the land was in Mrs. Brown and W. W. Brown, and if he sold it, he would only be selling his interest if he had any ; and if he had no interest in the land, he could sell none but that he was willing to buy it, and take the risk of holding it. I asked Mr. Brown what he would take for his interest, and he said he would take one hundred dollars. Said Brown said that he had not knpwn that his father had ever entered said land, or owned it, and that he never had claimed it, and never sold it. I did return and inform Bradford what Brown had said. Bradford said he would give him the one hundred dollars. * * * * * I never interviewed said Brown but twice in behalf of Mr. Bradford, and on the second interview when Brown proposed to take one hundred dollars for his interest, I told him that Mr. Bradford would pay him $100 for his interest at any time that he would come to his office, and Brown promised me that he would cometo Mr. Bradford’s office the next day and make the deed and receive the money. My authority as such agent then ceased. ” On cross-examination by appellee’s counsel,he stated : “At the time I called the second time at Brown’s store, in the interest of Mr. Bradford, Brown disclaimed having ever known that his father ever owned the land, and stated that he had no interest in the land and that he could not sell a thing that — 481 — he did not own. I told him that he could give a quitclaim deed, and that if he had no interest in the land, it would convey none ; it would only convey the interest he had; and that Mr. Bradford would accept such a deed and pay him $100 the amount he proposed to take for his interest. I reported to said Bradford the conversation had between myself and the said Brown, and informed Mr. Bradford that Brown promised to come over to his’office the next day and make the deed.” Brown’s testimony is confirmatory of Thompson’s statement of the interview. Bradford does not deny-that Thompson reported to him the conversation. There is a discrepancy in the testimony of Bradford and Thompson as to the exact authority conferred by the former upon the latter, the former insisting that he told Thompson to negotiate for the purchase of Brown’s estate in remainder, whilst Thompson puts it, that he was asked to see what Brown would take for his interest in the land. However this may be, it is clear upon the proof that the negotiation which actually took place, was for the purchase of Brown’s interest only upon the basis of the execution of a quitclaim deed, and that Bradford was fully informed before the deed was executed, that such was the case. Shortly after Thompson reported to him, Bradford saw Brown on the street, and, as he puts it, stated to him, that he would give him $100 «for his estate in remainder, and it was then arranged that Bradford would send the deed to Brown’s house to be executed, which he did very soon, Bradford himself, in company with a notary, performing the mission. The deed was presented to Brown and his wife, and was by them signed and acknowledged before the notary without the same being read, so for as appears. The deed was written by Bradford and its words of grant are : “party of the first part have this day bargained, sold, quitclaim and conveyed, and by these presents to bargain, sell, quitclaim and convey unto party of the second part,” &e. It is an undisputed fact that Bradford when he made the trade and before, knew that Brown repudiated all right, title or interest in the land, and steadfastly maintained that he had nothing to sell. In Thames v. Rembert, 63 Ala. 561, we said : “A bona fide purchaser entitled to protection against prior equities or latent infirmities in the title of his vendor, who — 482 — is apparently seized, and in the transaction with him pretends to be seized, in fee of the legal estate, is one who in good faith, without notice, parts with value or changes his position for the worse under the belief that he is acquiring the legal estate. Good faith and a valuble consideration are the essential elements of a bona fide purchase a court of equity will not disturb. The two must concur.” And in Craft v. Russell, 67 Ala. 9, we said : “A plea put in by a defendant, claiming to be a bona fide purchaser for value without notice, in order to be available as a protection against a prior equity or conveyance asserted by the complainant, must aver clearly, distinctly and without equivocation the following facts: 1. That he is the purchaser of the legal as distinguished from an equitable title ; 2, that he purchased the same in good faith; 3, that he parted with value as a consideration therefor by paying money or other thing of value assuming a liability or incurring an inj ury; 4, that he had no notice and knew no fact sufficient to put him on inquiry as to complainant’s equity either at the time of his purchase, or at or before the time he paid the purchase money or otherwise parted with such value.” In Hooper v. Strahan, 71 Ala. 75, we said : “The rule is settled in this State, that in such cases, it is required of a defendant, who is a sub-purchaser, to aver in his plea or answer * * * * the following facts: 1. That he is a purchaser from one in actual or constructive possession, who was seized or claimed to be seized of the legal title, at the same time briefly setting out substantially the contents of the deed of purchase with date, consideration and parties ; 2, that he purchased in good faith; 3, that he parted with value * * * *; 4, that he had no notice,” &c. In May v. Wilkinson, 76 Ala. 543, we again said, that he must show that he was a purchaser from one in actual or constructive possession who was seized, or claimed to be seized, of the legal title. The present record gives much general history which it seems to us, in connection with the foregoing facts, bears upon the good faith of the appellant in making the purchase in question. In. 1871 the Elyton Land Company pui’chased some 5,000 acres of land with a view of building a city, and upon which is now the city of — 483 — Birmingham'. The city constantly grew up to the time of "Webb’s purchase in July, 1883, when it had a population numbering about 10,000. This land w^s surveyed and laid off into streets, avenues, blocks and lots; large maps thereof showing the company’s possessions were made and suspended upon the walls of the company’s office, upon which were delineated the' streets, avenues, blocks and lots aforesaid. These maps embraced the land in controversy marked off by border lines, but did not show until later the streets &c. thereon. The company’s business was to sell their lots, and in the development of the city, up to the time of Webb’s purchase, sold very many of them, quite a number of them contiguous to the land in controversy. The maps were always used and referred to in making these sales. Whenever a sale was made, the name of the purchaser was written upon the face of the lot on the map. The map showed the section, township and range. A casual examination would not fail to discover that the lands in controversy were shown thereon. Prior to July, 1883, Webb purchased several lots from the company, one located on South Highlands, not far from the land in controvei’sy, and making his purchases, used and referred to this map, hanging on the walls in the company’s office ; and there is testimony going to show that he was frequently in the company’s office examining the maps to locate lots, with a view of purchasing. About a year before, to-wit, in August, 1882, he purchased from the owner the forty acres adjoining and south of the land in question, and he was over there at least once, looking at the lands in that locality. We think the circumstances show that Webb must have known that the Elyton Land Company claimed and owned extensive possessions, embracing not only lands in the corporate limits of the city, but extending far beyond those limits; that he knew its business and its manner of conducting it, and knew its possessions were shown on said maps. Bradford had been a practicing lawyer in the city for a number of years. There are strong indications, in the record, that he was wont to give attention to land trading. Indeed, the record brings to the mind an intimate intercourse between him and the real estate agents. It is passing strange if he did not know the part enacted by the Elyton Land Company in the building and growth — 484 — of the city of Birmingham; the fact that it claimed large possessions in and around the city; the business it was engaged in and its manner of conducting it, the existence and use made of the maps, &c. Yet, though the appellant alleges great diligence in the investigation of the title, he and Bradford abstained from all investigation in that direction. Again : many years before the purchase in question, several colored persons purchased, without conveyance, small parcels of this land from Joab Bagley, built their cabins thereon and lived in them from then until long after July, 1883. Neither Webb nor Bradford, according to their testimony, made any inquiry of these persons by what claim they held possession. We stated the rule above, that a bona fide purchaser without notice entitled to protection &c. must have purchased from one in the actual or constructive possession, who was seized or claimed to be seized of the legal title. Brown, as we have seen, was not, in fact, seized of the land, for he had conveyed to Bagley. We have seen, also, that he did not claim to be seized, but protested that he had no title, and that he could not sell that which he did not have. The evidence leaves no room for doubt that the bargain negotiated by Thompson for Bradford was for the interest of Brown in the land, whatever it might be, and that was the bargain, which was reported by Bradford, and so far as Brown understood, which was concluded with Bradford. Protesting as he did., whenever approached, against selling that which he did not own, it can not be conceived -that he would have entertained the idea, for a moment, of executing, for the consideration of $100 a deed with covenants of warranty. We need not decide, upon the face of the deed, what its effect is, whether a warranty or mere quitclaim. If it was before us for enforcement of its supposed covenants of warranty, we might possibly hold that the insertion of the word “quitclaims” did not affect the covenants implied by the words “bargain” and “sell.” But that is not the question before us. It is a question of notice and good faith asserted as a protection, in equity and good conscience, by one who has made a purchase. The allegations of the bill as set forth in the fifth section thereof are substantially sufficient, waiving multifariousness, to justify a prayer for — 485 — the reformation of this deed, converting it into a quitclaim merely. The parties are at issue upon these allegations. The evidence in support of them was admissible. Excepting the averment that Webb was expressly informed, that Brown had sold to Bagley, we are satisfied from the evidence that the allegations are true. We are therefore authorized, for the purpose for which the issue was made, namely, for the purpose of showing that Webb was not a bona fide purchaser, without notice, to treat the deed as a mere quitclaim. Upon these considerations we have no hesitation in declaring that Webb was not a bona fide purchaser for value, without notice. Affirmed.