Brunson v. Brooks , 68 Ala. 248 ( 1880 )

SOMEB.YILLE, J.

The guardian’s bond, permitted by the court below to be introduced in evidence, is executed in substantial conformity to the statute, and is, therefore, a statutory bond. The fact that it was given for the benefit of more than one minor, or ward, does not vitiate it as such. The requirement of the statute is, that such bonds be executed “ with sufficient sureties, payable to the judge of probate, in the penal sum of twice the supposed value of the estate of the ward.”—Code, 1876, § 2762. The word “ ward” here may mean toarás, under the influence of section 1 of the Code, affixing a legislative signification to words, and expressly providing that the singular may include the plural.

The statement of J. P. Brunson, made while in possession of his wife’s lands, admitting that “ he had no title to the lands, and that Mathew Brunson had never made a title to them ; and that the judgement would ruin him, [and] that he did not have a scratch of a pen to said lands,” was not admissible evidence against the wife for the purpose of showing fraud in the execution of the deed to her from Mathew Brunson. The rule has often been announced, that the husband’s declarations made against interest are never admissible to affect the wife’s statutory separate estate.—Murphree v. Singleton, 37 Ala. 412; Carver v Eads, 65 Ala. 190.

The general rule is, that the possession of a vendee under an unrecorded deed, who is in open, notorious and exclusive occupancy of real estate, claiming it as his own, is constructive notice of the vendee’s title, whether it be legal or equitable in its nature.—Wade on Notice, § 273; Burt v. Cassety, 12 Ala. 734. The reason of the rule is, that possession is a fact, open to observation, which should induce proper inquiry as 'to ‘whether or not the possessor has title, either for himself or in right of another, under whom he holds. It puts the purchaser on inquiry as to any outstanding deed or imcum-brance, in favor of such possessor, or those he represents, and charges him with notice.—Herbert v. Hanrick, 16 Ala. 581; Fenno v. Sayre, 3 Ala. 458; Wade on Notice, § 276. This principle is also applicable to the relation of landlord and tenant, and while the English authorities incline to the view, that the possession of a tenant under a lease is notice simply of his tenancy, or of the interest claimed by the actual occupant, the American doctrine clearly is, that the possession of the tenant is the possession of the landlord, and notice of the former is notiee of the latter. It is obviously within the spirit and reason of the rule, for an inquiry of the •oecupant will be likely to lead to a knowledge of the fact, that he is a mere tenant, holding in the right of another who is his landlord.—Hood v. Fahnestock, 1 Penn. St. 470; Wickes v. Lake, 25 Wis. 71; Franz v. Orton, 75 Ill. 100; Wright v. Wood, 23 Penn. St. 120; Wade on Notice, §§ 284-286.

Under the operation of these principles, we are of opinion, that the possession of the land by appellant, Brunson, for the wife and as her trustee, operated as notice of the wife’s title,^and prevented the lien of appellee’s execution against the vendor, Mathew Brunson, from attaching, although the latter’s deed to Mrs. Brunson was not registered at the time the levy was made. The possession of the husband is generally referable to his representative capacity, and must be considered the possession of the wife, when it relates to her separate estate, and it is, therefore, considered as notice of her right.—Gwynn v. Hamilton, 29 Ala. 233; Michan v. Wyatt, 21 Ala. 813. Nor can we see that the case is affected by the faet, that there has been a change in the character of his possession from tenant of the vendor to trustee or agent of the vendee. The law presumes that the facts attending the possession can be ascertained at any particular time, by instituting diligent inquiry. If Brunson’s possession, as tenant of the wife’s vendor, prior to the sale, was notice of the fact, that he was a mere tenant, and that his landlord held the title, it is based upon' the above well settled rule, that proper inquiry will afford the information, and for' a failure to inquire the law imputes mala fides to a subsequent purchaser. For a like reason, after the unregistered deed was made to the wife, and the husband held as trustee in her right, the same diligence of inquiry would lead to a knowledge of the new relationship, and thus operate as no-tiee of the wife’s title, The opposite view, it is true, we find to be maintained by one of our most respectable courts. Loughridge v. Bowland, 52 Miss. 546. But the doctrine there held is not conceived to harmonize with the theory of constructive notice as prevailing in this and other States, nor to constitute a just exception to it. Wade on Notice, §§ 286, 304; Herbert v. Hanrick, 16 Ala. 581.

The rulings of the Circuit Court were repugnant to these views, and its judgment must be reversed, and the cause remanded.