Scotch Lumber Co. v. Sage

TYSON, J. — The bill in this canse was filed for the partition of lands described in it between joint owners or tenants in common thereof. Complainant claims to be the owner of a six-sevenths undivided interest, in common with the respondent, whom the bill alleged to be the owner of the remaining one-seventh. The answer of respondent denies the ownership of the complainant as alleged by him, and states the resx)ecfcive interest or ownership of the lands to be a six-sevenths undivided interest to belong to it, and a one-seventh to belong to complainant. After the filing of this answer, complainant amended his bill in which he set forth the claim of title under which the • respondent claims to' own the six-sevenths interest. In order to complete this chain of title, an alleged unrecorded and lost or destroyed deed is necessary to be established by .respondent by parol evidence. This amendment also asserts title to be in complainant to a six-sevenths interest, and avers that complainant is a bona fide purchaser without notice of the unrecorded and lost deed under and through which the. respondent claims title. This amendment, and a subsequent one filed, also in-vehe an estoppel against one of the. grantors in respondent’s chain of title. Under the; view wo: take of this case, it is unnecessary to consider the rulings of the court in this respect. For, if respondent has failed to establish the execution, contents, etc., of the lost, deed, or the complainant is shown to have paid value for the lands, and the. respondent has failed to sustain the burden of proving notice to him either actual or constructive of the contents of the lost deed, if it is shown to have ever had an existence, there is no error in the decree of which appellant can complain.— Caldwell v. Pollak, 91 Ala. 353. Adverse possession is also- relied upon, by respondent to show title in the grantee to whom the lost deed was [606] made. Both parties litigant claim to have derived their respective titles from the same source, to-wit, the children and heirs-at-law of the Wiggins’. There were seven of these children and the complainant shows a complete recorded, chain of title to the interest claimed by him. While the respondent shows only a complete chain of title bj^ the records of a one-seventh interest, it insists that John O. Wiggins, one of the seven children, acquired the title of all of his brothers and sisters, except one, by deed executed to- him which was lost and never recorded. In view of the uncertainty as shown by the evidence, not only as to- the signing of this alleged lost deed, by all of the alleged grantors, but as to its attestation, as to some of the signatures, its acknowledgment by others and its contents, and when executed, if executed at all, it is doubtful whether the proof is sufficient to warrant us in finding that it ever existed. Elyton Land Co. v. Denny, 108 Ala. 553. But conceding for the purposes of this opinion, that it was executed as contended for, the respondent must fail for the reason that it is not shown that complainant had any notice, either actual or constructive, of it, if it was ewer’ made, the complainant having shown that he paid value. It will be observed that complainant does not derive his title through John C. Wiggins, or by or through mesne conveyance from him. In other words, he is not a grantor in the chain of title to any portion of the six-sevenths interest claimed to be owned by the complainant There is, therefore, no privity between them. This being true, the record of his deed to Baggett was not constructive notice that he (Wiggins) claimed to have owned a six-sevenths interest, instead of a one-seventh. And the same may be said of the record of the other deeds in respondent’s chain of title. Tiedeman on Real Property, § 817 et seq.; 16 Am. & Eng. Ency. Law (1st ed.), p. 800; Gimon v. Davis, 36 Ala. 589; Lehman, Durr & Co. v. Collins, 69 Ala. 127; Burch v. Carter, 44 Ala. 115. What, then, is there in the facts of the case to show that complainant had actual or imputable notice that John C. Wiggins or [607] those claiming under him ewer claimed to own the entire six-sevenths interest in the lands? It is true, it was attempted to be shown that Wiggins was in the possession of the lands for some years after the lost deed was alleged to have been made to him. But the year in which this deed was executed, whether in 1870, 1871 or 1872, is not, definitely shown. With the existence of the deed conceded, having shown that there was nothing upon the record to put the complainant, upon notice of it, it becomes necessary to determine whether there was anything in the possession claimed under it to put the complainant upon notice. When this complainant negotiated and paid for and received his deed to, the six-sevenths interest in these lands, his grantor ivas in possession under a complete recorded chain of title claiming to own that interest. Neither the respondent nor any one under whom it claims to have derived title was in the open, visible, exclusive and unambiguous possession of the lands, which is essential in order for possession to operate as notice of the unrecorded deed. To go back of the purchase by complainant, when Proctor purchased these lands, no one was in the actual possession of them, nor had anyone who claimed to own them, had the actual, open, exclusive and continuous possession of them for several years prior thereto-, notwithstanding there were, when Baggett’s tenant left, them in 1879, dwelling houses upon them and a part of the tract was tillable. So, then, there is nothing in the fact of possession to have put. the complainant on notice of the unrecorded deed or to have even excited suspicion that his grantor did not have title to- the interest he claimed to own.—Wells v. Am. Mortgage Co., 109 Ala. 446; McCarthy v. Nicrosi, 72 Ala. 332; Watt v. Parsons, 73 Ala. 202; Motley v. Jones, 98 Ala. 443; Griffin v. Hall, 129 Ala. 289; Wade on Notice, § 296. There is much contention in brief that complainant had notice of respondent’s claim because Wilson, one of his attorneys in this case-, knew it. There are two reasons why this contention, cannot prevail. First. It appears that Wilson acquired his knowledge while representing Bowden or Proctor and before he was em [608] ployed by complainant to purchase these lands for him. Second. The evidence shows that Wilson represented the sellers of these lands also and was personally interested in making the sale of them to complainant. He was really the seller, and got all of the purchase money that was paid by complainant. ITe was, therefore, really acting for1 himself, in his own interest, and adversely to that of his principal, the complainant, without any knowledge on the part of the latter of liis dual relation.—Pepper v. George, 51 Ala. 190; Frenkel v. Hudson, 82 Ala. 158; 1 Am. & Eng. Ency. Law, pp. 1145, and 1149-50 and note 1 on page 1150. It is insisted that the possession of John O. Wiggins and Baggett was adverse, and that it continued for a sufficient length of time to ripen into title, and that, therefore, respondent has a title to the six-sevenths interest in the lands claimed by it, independent of the unrecorded deed. It is entirely clear to us that the evidence is insufficient to sustain this contenten—to overcome the presumption that John O. Wiggins was holding for himself and cotenants.—Jackson v. Elliott, 100 Ala. 669; Johns v. Johns, 93 Ala. 239. Indeed, just how John C. Wiggins’ possession could be adverse to- the five-sevenths interest which he claims to have derived under the lost deed, which we have shown, if made, is ineffectual to pass title as against this complainant, and not adverse to the cotenant whose interest the complainant acquired,' we are quite unable to understand. For the reason, that the theory of this contention is necessarily predicated upon the actual and exclusive possession by Wiggins of the lands. Certainly if it was exclusive so as to ripen into title by adverse possession as to the five-sevenths which the respondent; claims that it acquired title to by adverse possession, upan the same principle it would have acquired the other one-seventh interest which it is conceded is owned by the complainant, it not being shown that the heir who owned that one-seventh interest was in possession at the time that it is claimed that John C.’s possession ivas adverse. [609] The remaining point necessary to be noticed is tlie one that Emma Wiggins, if there he in existence snch a person, should lia,ve been made a party respondent to the hill. This contention is based solely upon the difference in the recital of the names of the minor heirs of Stephen L. Wiggins in the act of the general assembly approved December 9, 1896, authorizing them to sell their one-seventh interest in these lands, and the recital of the names of the children and sole heirs of Stephen L. in a deed executed by them to Bowden on the 18th day of January, 1897. If we should hold the recitals in this legislative act to be evidence of the facts stated therein, we could not allow it to overcome the recital in the deed that the persons therein named were at the date of its execution the “only children and sole heirs of Stephen L. AViggins, deceased,” in the absence of other evidence upon this point, and especially in face of the admission made by the pleadings, etc., ini the cause. There is no error in the record and the decree appealed from must be affirmed. Affirmed.