McCaskle v. Amarine , 12 Ala. 17 ( 1847 )

COLLIER, C. J.

Without stopping to inquire whether it was necessary for the plaintiff to produce and prove the proceedings before the justice of the peace, or whether the orders of sale having been made upon their inspection, was not conclusive of their regularity, we would remark, that if such proof was essential, we can discover no objection to the competency of the constable. This witness affirms that he was well acquainted with the handwriting of the justice; and if it was more convenient to obtain his testimony, or the plaintiff preferred relying on it, to calling on the justice to prove or admit his writing, we cannot conceive that any rule of law would be violated. The evidence of the justice might perhaps be more satisfactory and convincing, but it would not be of a higher grade, and could not consequently be rejected under the influence of the rule which requires the best evidence attainable to be adduced.

The certificate upon which the deed from George McCas-kle to the defendant was admitted to record, merely affirms that the subscribing witnesses personally came before the justice of the peace, and being duly sworn, deposed “ that they acknowledged their signature to this deed. Now, the statute requires where a deed is proved by the subscribing witnesses, that they shall declare on oath, that they saw the grantor sign, seal and deliver the same to the grantee, and that they subscribed their names as a witness thereto in the presence of the grantor, &c. [Clay’s Dig. 151-153, <§> 1-7. ] It is. perfectly clear that the certificate does not at all conform to the directions of the act, and the registration cannot be regarded an official act of the clerk, so as to operate a constructive notice of the contents of the deed to those whose interests it may affect.

It was not indispensable to the plaintiff’s right to recover, that he should have adduced documentary evidence of a title in the defendant in the executions under which the sheriff sold the land, or that the latter had had twenty years uninterrupted adverse possession. We have repeatedly held, that where a party is in possession of land under a claim of right, he has prima facie such an interest as is subject to levy and sale under a fieri facias ; although the possession may not have continued for such a length of time as to bar a right of entry. Actions of ejectment and of a kindred character have frequently been maintained upon proof of possession for a period short of twenty years. These decisions rest upon the ground that the defendant in execution, or the plaintiff in such action, had a legal title, though it may have been incomplete in itself, or imperfectly evidenced.

It is not indispensable to the validity of a deed conveying lands, that it should be recorded. But if it is not registered within the time prescribed by our statutes, it is only invalid and inoperative against creditors and subsequent purchasers, &c. [Clay’s Dig. 154, § 18; 256, § 8.] The defendant does not come within either of these classes; as to him therefore, it is unimportant whether the deed under which the plaintiff deduces a title was ever recorded. If the purchase under which he claims was bona fide, and the plaintiff had constructive notice of it, either by the registration of his deed or the occupation of his tenants, (which may be regarded as equivalent,) the subsequent sale by the sheriff through which the plaintiff claims cannot affect him.

It might perhaps have been questioned whether, if George McCaskle and Willis and Peter Bennett occupied separate parcels of the land in controversy, a joint action could be maintained against them, but that question was not raised, and it is possible the record is now in such a condition, that it cannot be made hereafter. If the tenants occupied distinct parts of the land, then the verdict against them should have been for damages severally against each, proportioned to the value of the parts they respectively occupied. The circuit court admitted'the defendant to defend the suit “as landlord for each and all of said original defendants,” and the plea of “ not guilty ” was then filed, &c.; the jury found the original defendants (the alledged tenants) not guilty and the defendant guilty — assessing the damages against him, &c. This proceeding may not be technically correct in every particular, yet as the landlord upon his own motion was admitted as a defendant to defend for his tenants, the case may be considered as if he was a party to the writ. This being so, he could not if the suit had been thus instituted, have objected that his tenants were discharged by the verdict, and that he had been charged with the rents for the premises occupied by them. As he was instrumental in keeping the plaintiff out of possession by putting others in, he should make good to the plaintiff, the loss resulting from his ouster, though the tenants might be liable to him for rent; and we think it is not material as it respects the consequences, whether he is made a party under original process, or comes in of his own accord. If the landlord who defends unsuccessfully is liabíe for the damages accruing after “ the commencement of the suit,” we can conceive of no objection to the verdict because it is for an aggregate sum, instead of estimating severally the value of the rents for the part occupied by each tenant.

If the sale by George McCaskle was fraudulent, and intended to delay, hinder and defraud his creditors, the fact that the defendant, his vendee, had leased the land to other persons who were in the actual possession when the sale was made by the sheriff under the writs of venditioni exponas, or when the plaintiff redeemed the land from the purchasers at that sale, as authorised by the statute, cannot impair the plaintiff’s title. The possession of a fraudulent vendee cannot under such circumstances be deemed adverse as against creditors and purchasers, where the subsequent sale is made under judicial process: and the possession of his tenants must be regarded as in subordination to his title.

The judgments before the justice of the peace under which the levies and subsequent orders of sale were made, were rendered before the execution of the deed from George McCas-kle to the defendant, and as against the plaintiffs in those judgments, and the purchasers deducing a title to the land through the orders of sale, it devolved upon the defendant to show that the note of his vendor which was delivered up, evidenced a real debt. Without the aid of such extrinsic evidence, no influence can be accorded to it against a pre-exist-ing creditor of the vendor. If the law were otherwise,' it would be easy to simulate a debt, manufacture the ostensible proof of it as occasion required, and thus place at defiance the creditors of a debtor who did not feel it a paramount duty to pay his debts. But it is unnecessary to attempt to support this view by reasoning, for it rests upon unquestionable authority.

In respect to the note for three hundred dollars, which was made by the defendant and handed to his vendor at the time the deed was executed, there was nothing to impugn the consideration thus far. It cannot be assumed as a legal conclusion, because the vendor’s note which was delivered to him was not shown to indicate a real indebtedness, that the ven-dee’s was merely simulated, and intended to put a false phase upon the transaction. The mere fact that the entire consideration recited in a deed has not been paid, or that it is not a full equivalent for the property conveyed, does not per se make the deed void, although they might in the opinion of a jury throw suspicion over its fairness, and under some circumstances authorise a verdict against its validity. In the case at bar, the court, instead of passing upon the bona fides of the sale and conveyance from George McCaskle to the defendant, and declaring that it was not supported by a consideration, should have laid down the law, and the jury should have determined the questions of fact and the intention of those parties. For the error in the last charge given, the judgment of the circuit court is reversed, and the cause remanded.