Ely v. Pace

HARALSON, J. This was an action in the nature of an action of ejectment by M. Ely against Sallie Pace and Tom Parker. Defendants pleaded separately, — Sallie [297] Pace, disclaiming possession, and Parker pleading the general issue. • Section 1533 of the Code provides, that defendants, in an action of this kind, may disclaim possession of the premises sued for, in whole or in part, and upon such disclaimer, the plaintiff may, if he so elects, take issue, and if issue be found for him, he is entitled to judgment. This denial of possession put in issue the question of possession, and only that. It was for the purpose on this trial, an admission of plaintiff’s title, with a denial of defendant’s possesion. — McQueen v. Lampley, 74 Ala. 408, 410. The contention before the court, so far as the defendant Bailie Pace, was concerned, was confined to the fact of possession by her of the piemises, at the time the suit was commenced. To support the action, the fact of pos session by Mrs. Pace, at the commencement of the suit being contradicted, it was necessary for plaintiff to show, that she was in actual possession, or had dispossessed him which Avas not done'. — Kirkland v. Trott, 66 Ala 420; Bailey v. Selden, 124 Ala. 406; Tyler on Ejectment, 472. The judgment entry sIioavs that issue Avas joined oh the pleadings filed in the cause, and the case was tried, both, on issue joined on defendant Pace’s disclaimer of possession, and on Parker’s plea of not guilty. The court gave the general charge in favor of defendants, and refused a like charge for plaintiff. The plaintiff claimed title to the land imder a mortgage executed to him by James II. and John W. Smith, Jr., executed on the 4 th of May, 1893, which mortgage. Avas duly acknoAAdedged but never recorded. Indeed, it contained a stipulation that if placed on record it should become Amid and of no effect'. The defendant Parker, by his plea admits his possession of the land sued for, but did not attempt, in any Avay, to sIioav title in himself. Bo far as he was concerned, the plaintiff, as for any muniment of title he offered and introduced in evidence, was entitled to the general charge. The defendant Parker, as a defense to the action, sought to show that Mrs. Pace Avas a bond fide purchaser of the land in question, from the same parties that plaintiff derived title from, — the said J. R. and J. W. Smith, [298] Jr. For tins purpose, lie introduced a deed from said Smiths to Mrs. Pace to the land in question, dated March 5(.Ii, 1895. This deed recited as a consideration, “one thousand dollars due by us to Mrs. Sallie E. Pace, of tic.; said county, and which is secured by a lien on real estate herein described,” etc. This is a recital of said sum already due to the grantee. The rule as to a bona, fide purchaser, often repeated in this State is, “that the party pleading it must, first make satisfactory proof of purchase and payment. This is affirmative, defensive matter in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. Ei inoumbit probatio qui dicit. This done, he need not go further, and prove he made such purchase and payment without notice. The burden here shifts, and if it be desired to avoid the effect of such purchase' and payment, it must be met with counter proof that, before the payment, the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on en-quiry, which, if followed up, would discover the equity or incumbrance.” — Hodges v. Winston, 94 Ala. 578; Bynum v. Gold, 106 Ala. 434. Another well settled rule is, that conveyances of property, real or personal, whether the consideration is adequate or inadequate, good or valuable, if made in good faith, are imlid and operative, as between the parties. “But as against the existing creditors of the grantor, they cannot be supported, unless .shown to have been founded on an adequate and valuable consideration. Where between the grantee and an existing creditor; a controversy arises as to the validity of the conveyance, it has long been the settled rule of this State, that the recital of a consideration, is the mere declaration or admission of the grantor, and is not evidence against the- creditor.” Tf the consideration is averred to be a debt of the grantor, or of the debtor from whom the consideration for the conveyance originally moved, the existence and validity of such debt must be proved. — Hubbard v. Allen, 59 Ala. 283, 296; Houston v. Blackman, 66 Ala. 559; Buchanan [299] v. Buchanan, 72 Ala. 57; Tutwiler v. Munford, 68 Ala. 124. Tlie plaintiff objected to the. introduction of tlie deed from the Smiths to Mrs. Pace, on the ground that it was irrelevant and immaterial. It shows on its face, that it was for a debt due at the time. There was no proof of the consideration expressed in the deed, whether it in fact existed and. was valid or not. Under such conditions, the burden was not placed on the plaintiff to prove that the purchaser had actual or constructive notice of the existence of his mortgage. Without more than was shown by defendant, Parker, Mrs. Pace’s deed was insufficient to show.that she was a bona fide purchaser for value. As appears, the plaintiff made out his case against defendant, Parker, and was entitled to the general charge as to him. The court, however, gave that charge for both defendants. For this, the judgment must be reversed. •Reversed and remanded.