Christopher v. Curtis-Attalla Lumber Co.

SOMERVILLE, J. The appellee sued the appellant in ejectment to recover possession of all of the timber of a certain size growing on certain lands. These lands were originally owned by one J. A. McDaniel, who sold the timber in question to one A. M. Lewin on February 28, 1903. Lewin’s deed was not recorded until April 10, 1909. Lewin in turn sold and conveyed the timber to the Curtis-Attalla Lumber Company, (plaintiff and appellee) on September 28, 1903, by deed recorded on October 17, 1903. On October 15, 1904, McDaniel sold and conveyed the lands of Avhicli this timber formed a part, by general description and Avithout exception or reservation, to Obal Christopher, the defendant in ejectment, by deed recorded on November 1, 1904. McDaniel Avas continuously in possession of the land until October 15, 1904, Avhen he delivered the possession to the purchaser, Christopher. The material and controlling issue in the case Avas Avhether the purchaser, Christopher, had, at the time of Ids • purcha.se, actual or constructive notice of the rights of the plaintiff Lumber Company under their unrecorded deed. Upon this issue the evidence, though strongly preponderant in favor of the defendant, Avas in sharp conflict, and the jury found the issue in favor of the plaintiff. The assignments of error relate to rulings on the admission of testimony, and to instructions given and refused by the trial court. The case of McCarty v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418, often approved and folloAved by the later — 490 — cases, settles tlie following principles: (1) The possession of real estate by a vendee under an unrecorded deed operates as constructive notice of his rights only when his possession is open, notorious, and exclusive. (2) Such vendee’s possession jointly with his vendor is not such notice. An important qualification of the rule is that-a prior possession, which has terminated before the second purchaser's rights are acquired, cannot operate as constructive notice to him. — 2 Pom. Eq. Jur. § 662, cited and approved in O’Neal v. Prestwood, 153 Ala. 443, 449, 45 South. 251. Of course, however, such a possession, actually known to the second purchaser, may, especially in connection with other evidence, tend to show actual knowledge of the antecedent claim — a question quite distinct from that of the constructive notice resulting from contemporaneous possession, the effect of which does not depend upon actual knowledge of it. A sale of growing timber may pass the legal title to the purchaser; but, without more, it passes no interest in the soil generally, and confers no right of possession that can be exclusive of the general owner’s possession. The right to take possession of such timber can be executed only by entering upon the land and severing it from the soil; and until this is done the actual possession of the timber, undelivered as yet, remains in the general owner in possession of the land, as the quasi bailee of the owner of the timber. This, it seems to us, belongs to the category of self-evident truths, which need no demonstration. — See Heflin v. Bingham, 56 Ala. 566, 28 Am. Rep. 776. It results from this that the principle of constructive notice to the defendant, through the plaintiff’s alleged possession of the timber while still standing on McDaniel’s land, cannot be applied to the facts of the — 491 — present case; the only legitimate issue being as to actual notice on the part of Christopher, or his purchasing agent, of the rights of the claimant of the timber. The case of Bolland v. O’Neal, 81 Minn. 15, 83 N. W. 471, 83 Am. St. Rep. 362, is quite different from the instant case.. There the timber purchaser — to quote from the opinion — “took actual and open possession of about 20 acres of the central portion of the land, along the roads, and scattered buildings all over it. No one could go along that way without being challenged at once by open, notorious, adverse acts of possession. They had commenced to cut the trees down, and Avere in the act of cutting timber upon the land, Avhen plaintiff purchased.” This actual possession, adverse, to the general OAvner, was visibly evidenced by the establishment on the land of a large hunber camp to accommodate a hundred men and many horses, including barns, sleeping quarters, cookhouse, storehouse, office, and blacksmith shop. It appears, therefore, that there Avas an extensive and exclusive possession of the land for the patent purpose of removing the timber, as distinguished from a mere occasional entry and cutting as in the present case; and, on such facts, it Avould seem that the Minnesota coiu-t correctly ruled that there Avas such a possession of the timber as imported constructive notice of ownership. The evidence here sIioavs that McDaniel remained continuously in possession of the land, and that the timber claimant never had possession of any part of the land; his action being confined to merely entering and cutting and hauling aAvay the logs at intervals. The trial court ex mero motu charged the jury as folloAVS: “The fact, if it be a fact, that Christopher or Elliott, or both of them, kneAV or had notice that the timber had been cut or Avas being cut and removed — 492 — from the land at or prior to the time of the alleged purchase on the 15th day of October, 1904, would not in this case be notice to Christopher or Elliott that the timber so cut was cut and removed by the plaintiff under a contract of purchase or ownership of the timber. The evidence in this respect must be sufficiently strong to reasonably satisfy you that Christopher or Elliott had such notice of the cutting and removing of the timber as would reasonably impress the mind of a reasonable man that the timber was cut and removed by plaintiff as owner of the timber, and not merely by the permission of or by consent of McDaniel. If defendant knew, or had means of knowing, of the cutting of the timber at or before the time of defendant’s purchase, then he would be chargeable with notice of plaintiff’s claim. The jury in ascertaining this matter will weigh and consider all the evidence in the case bearing upon the subject so as to ascertain reasonably therefrom what notice, if any, Christopher or Elliott had at the time of the alleged purchase of McDaniel of the timber and ownership thereof by plaintiff. Did Christopher or Elliott know, at the time of their alleged purchase of the land of McDaniel, that the plaintiff owned the timber the subject-matter of the suit, and if you find from all the evidence that defendant or Elliott, at the time of their purchase and payment for the land, knew reasonably of the ownership of the timber being in the plaintiff, then you should find in favor of the plaintiff.” This charge is, Ave think, a correct statement of the law as applicable to the evidence before the court, with the exception of a single paragraph, as follows: “If defendant knew, or had means of knowing, of the cutting of the timber at or before the time of defendant’s purchase, then he would be chargeable Avith notice of plaintiff’s claim.” This was a flagrant contradiction — 493 — of the first paragraph of the charge, and was an erroneous statement of the law. We cannot know which of these instructions the jury followed, and hence cannot hold that the erroneous contradiction of the first paragraph was not injurious error. — A. C. G. & A. Ry. Co. v. Ballard, 157 Ala. 618, 47 South. 578. Charges 4, 5, 7, 9, 11, 12, 13, 14, 15, 16, 17, and 18, requested for the defendant, correctly state the law of constructive notice as above declared; and in view of some of the evidence, should have been given by the court, except that some of them are deficient in not qualifying the “notice” referred to as “constructive” notice. Charges 1, 2, and 3, given for the plaintiff, are at least abstractly correct. Since possession of growing timber, independently of any possession of the land itself, is a legal impossibility, the statement of the witness Smith that plaintiff’s agent was in possession of the timber, though not in possession of the land itself, Avas a mere conclusion, which should have been excluded. It was error also to alloAV the plaintiff to prove the fact of its several entries upon the land and its cutting of timber during the months of July, August, and September, 1904, Avithout some evidence of defendant’s knoAvledge thereof. In the latter case, such proof would • be competent as tending to show defendant’s actual knowledge of plaintiff’s claim, in connection with McDaniel’s testimony that he had expressly informed defendant of it. For the same reasons' it Avas error to allow plaintiff to prove the quantity of timber cut on those occasions. The issue involved, in part, the bona tides of the defendant’s purchase of the land for a valuable consideration. As bearing upon his good faith, he should have been permitted to show that the property purchased by — 494 — him was not worth in excess of the price paid, $6,000. Hence the propriety of the question to defendant’s witness Elliott, “Whether or not the $6,000 was not the market value of the property set forth in the McDaniel deed to Christopher, including the timber on the land,” in the rejection of which there was error. For the errors noted above, the judgment will be reversed, and the cause remanded. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.- Mayfield, J., concurs in the reversal, but not in all of the opinion.