Barksdale v. Beasley

LIVINGSTON, Chief Justice. Off-; former appeal in this -case, this .court affirmed a judgment of the Circuit Court of Houston County, Alabama, in Equity, overruling appellant’s demurrer to a bill of complaint filed by the .appellee. Barksdale v. Jordan, 253 Ala. 199, 43 So.2d 406. See the report of that case for a statement of -the facts up to that time. The object of the bill' on'first appeal, as is the case here, was to remove a cloud on the title to,' a' certain tract of .land therein discribed. The appellant in that case, who is also the appellant on this' appeal, claimed the lands involved through á sheriff deed executed to her on November ;23, 1942. . On the former appeal, it was pointed out by this court that the pleadings did ‘hot show whether, execution had -been issued or certificate of judgment'had been recorded when the judgment debtor conveyed the property back to the' plaintiff and that, therefore, the appellant did not show a prior right as purchaser at ah execution sale on the principle that the sheriff • deed related back' to .the date of the lien on account of a judgment. After the affirmance here, Mrs. Barksdale; the '■appellant in the former appeal, -filed, an answer - and a cross bill to the original bill of complaint in' which she. made it . appear that the judgment against Bill Jordan and his. wife, to satisfy which, the sheriff sold the property here involved and . which she purchased,- was recorded in. the office of the Judge of Probate of Houston .County, Alabama, the county in which the lands involved were situated, before Bill Jordan -and his .wife reconveyed the land to John D. Jordan. The original bill of complaint was also amended to show that John D. Jordan executed' and delivered the deed to the lands involved to Bill Jordan upon his agreeing to take .care of, maintain, and support, his father,- John D. Jordan, during his lifetime;.-and'that appellant, Mrs. Barksdale, the daughter of' John D. Jordan and the sister of Bill Jordan, knew at all pertinent times the consideration moving from Bill Jordan -and his wife to John D. Jordan for the deed of conveyance;- and, further, that the said [150] Mrs. Barksdale knew that the-'said Bill Jordan and his wife had- not- performed the contract as agreed at the 'time ' the judgment was recorded, and that at the time she purchased at the sheriff’s - foreclosure sale she knew that Bill Jordan Had reconveyed the lands to his father. Pending this litigation and- after affirmance here on the former appeal, John D. Jordan died, and Montee E. Beasley was. duly appointed executrix of the estate of said John D.. Jordan, deceased. On. motion, the .cause was. revived in the name of Montee E.. Beasley, as Executrix, of .the Estate of John D. Jordan, Deceased.. Before John D. Jordan died,-but after suit was instituted by him, -he. .sold,-the lands here involved, .a part.to. Montee E. Beasley, a part to E. D..JDawsey, .and. a part to -Collis C. Watford.? É. D, pawsey, who .purchased about 300 acres' of the.-lands involved, executed, and delivered to. John D. Jordan a purchase money mortgage to . secure a . part of .the. purchase price of the land? purchased -by him, .This mortgage was-unpaid at thé timé John D. Jordan died. After John D. Jordan- died'-’ahd;>a£fer the suit had been revived-in-the-name "of Montee E. B'éasley, as -Executrix •'of the Estate of John D. Jordan, Deceased, the-appellant, Mrs. Barksdale,-'agáih amended her cross hill- arid made Montee-'-B'easley, E. D. Dawsey, Cóllis C. Watford; and-all the heirs at law of John D. Jordan';' deceased ; namely, Montee E.. Béásléy' Tnéz Peterman, Bill Jordan, children of - John' D. Jordan, deceased, and TBill Jordan’s'wife, Daisy Jordan, parties respondent to her cross bill. The trial court entered a decree to the effect that the sheriff’s deed conveying the lands involved to appellant.is a cloud on the title to the real estate-involved .-in this suit and. ordered the same cancelled of record. • Assignment of error number one, is not argued in- brief and -is, therefore, wáived. The ■' first árgued assignment 'of 'error takes' the point that the suit' was '.'erroneously revived in the name of Montee E. Beasley, as the Executrix of John-D..-Jo.r~ dan, Deceased. - The assignment’ is without merit -because the removal of a cloud on the title to real estate by the personal representative, under the -facts of this case, is necessary to the complete exercise of her statutory authority. Moragne v. Doe, ex dem. Moragne, 143 Ala. 459, 39 So. 161, 111 Am.St.Rep. 52; Wilson v. Kirkland, 172 Ala. 72, 55 So. 174; Title 7, § 151, Code 1940; Equity'Rule 35, Code 1940, Tit. 7 Appendix. A purchaser at execution sale is-bound by the rule of caveat-emptor. Such purchaser acquires only such .interest as 'the defendant in execution, had, subject to all pre-existing equities- in .favor of third parties against the defendant; and the ’‘sheriff’s deed gives' hint no higher right against them than if he bargained :for and obtained a quitclaim deed from the execution defendant. Clemmons v. Cox, 114 Ala. 350, 21 So. 426; Figh v. Taber, 203 Ala. 253, 82 So. 495. "This rule-is sometimes limited by statute not heré pertinent. Tennessee Coal, Iron & Railroad Co. v. Gardner, 131 Ala. 599, 32 So. 622. The trial court, found, -in effect, ■ that .appellant, Mrs. Barksdale, purchased - the -.lands- involved in this suit -at. a- sheriff’s sale with full knowledge of.-the- limited interest which her brother, ;Bill Jordan,, had in said lands, 'b.y'virtue of. the,'agreement with their father, John D. Jordan. The evidence.affords-conflicting inferences, as to that -question,' but after a- Careful consideration of it,-we are iii-accord, with .the decree of the- trial .court. '- •- ..- Appellant . maSes some, -argument that she should be reimbursed for the price 'she paid for .-the lands at the sheriff’s sale. The'rules above-allude to refute this argument. ■ We find-no error to reverse and the .cause is affirmed. . . Affirmed. SIMPSON,-' GOODWYNJ and CLAYTON, JJ., concur.