Brown v. International H. Co.

ANDERSON, J. The appellee recovered a judgment against J. M. Crutchfield on the 18th day of September, 1907, and ivas therefore a judgment creditor when the deed from said Crutchfield to his daughter and son-in-law ivas recorded on September 20, 1907; therefore said deed was void as to this appellee, under the terms of section 3383 of the Code of 1907, in the absence of notice of same, or of facts sufficient to put the appellee upon inquiry, and it Avas incumbent upon the defendants to show notice. Crutchfield admitted that he was in the possession of the land Avhen the deed was made, March 19, 1907, but claimed that he was in pos [566] session for Brown, yet there is nothing to indicate that this appellee knew that Crutchfield was in possession for Brown. The Browns were never in the possessio pedis, and the only possession that they attempt is through this grantor, Crutchfield, or through a tenant by the name of Calloway, for the year 1907. There is nothing to indicate any change in the possession from Crutchfield to Brown, or that Calloway was the tenant of Brown instead of Crutchfield, as the said Crutch-field testified that he was in possession on March 19, 1907; and if the tenant, Calloway, went in possession on the first of said year 1907 he must have held the same conjointly with Crutchfield, or under him; and there was not such an actual, visible change in the possession from Crutchfield to Brown as would put the judgment creditor on notice -or inquiry. It requires an actual change of possession, as distinguished from a constructive one, to charge a creditor or purchaser with notice of an unrecorded deed. — Griffin v. Hall, 129 Ala. 289, 29 South. 783. It is not enough that the tenant in possession agreed to hold under the grantee in the unrecorded deed, as that alone would be no open or visible change in the possession. — Griffin v. Hall, 111 Ala. 601, 20 South. 485. The trial court correctly gave the general charge for the plaintiff; and, as the other questions did not tend to change the above undisputed facts, there could be no reversible error in the rulings upon same. Moreover, the plaintiffs were entitled to the general affirmative charge for another and still better reason. The undisputed evidence shows that the deed of 1907, while signed and acknowledged prior to appellee’s judgment, had not, in fact, been delivered when the judgment was obtained. Delivery is essential to the execution of a deed; and the defendants had no Valid deed [567] Avhen the judgment was obtained, independent of the statute of registration. The judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.