Williams v. Higgins , 69 Ala. 517 ( 1881 )

BRICKELL, O. J.

1. When a deed is found in the possession of a grantee, the presumption arises that it was duly delivered to him. The presumption is disputable, and it may be countervailed by evidence, that he obtained the possession without the knowledge or consent of the grantor, surreptitiously, or illegally, the burden of proof resting on the party disputing the presumption. But when the possession is obtained from, and by the act of the grantor, or with his consent, without infringing salutary principles of the law of evidence, it is-not permissible for him to show that the delivery was not absolute; that it was conditional or qualified. The deed of the appellant on its face is an absolute bargain and sale of the lands, with full covenants of warranty, purporting to be signed, sealed and delivered in the presence of subscribing witnesses. Yoluntarily, by his own act, the grantor placed it in the possession and under the dominion of the grantees. The law declares its operation and effect, which can not be avoided by parol evidence showing the delivery was not absolute, that it was qualified, or conditional, without a violation of the cardinal rule, that the operation and effect of written instruments can not be varied or altered by evidence resting in parol.— Ward v. Lewis, 4 Pick. 518; Lawton v. Sager, 11 Barb. 349; Fireman's Ins. Co. v. McMillan, 29 Ala. 147-160. It is as incumbent on a grantor who would qualify the delivery of a deed to the grantee, to express the qualification in the deed, or in an accompanying writing, as it is to express in writing any qualification or limitation of the words of grant or covenant found in the deed. In legal contemplation, all parol negotiations or agreements, whatever they may have been, antecedent or cotemporaneous,' existing at the time of the delivery of the deed, are merged in the delivery, and from that time it is an operative conveyance according to its terms. The delivery of course includes acceptance by the grantees, and neither party can be allowed by parol to qualify the legal effect of his own voluntary and intentional act. There was no error in the ruling of the Circuit Court in reference to the delivery of the deed made by the appellant conveying the lands in controversy to S. A. & D. Williams.

2. The deed purports to be founded on a pecuniary consideration, and in the absence of fraud in its execution, it is not. permissible for the grantor in a court of law to show the want, or inadequacy of the consideration expressed.- — Morris v. Harvey, 4 Ala. 300.

3. Conveyances, or gifts, made to hinder, delay, or defraud creditors, are valid and operative between the parties, when fully consummated; neither party can rescind or defeat them. 2 Brick. Dig. 16, § 45. And it is not material whether the party is alleging the fraud as matter of defense, or as a ground of action, for, as was said by Lord Mansfield, 1 W. Black. 364, “no man shall set up his own iniquity as a defense, any more-than as a cause of action.” The plaintiff in the present action showed a legal title to the lands in controversy, entitling him to recover possession, by the exhibition of the paper titles, the first of which was the deed made by the appellant, and all fair on their face, not importing that any one of them was founded upon or connected with an illegal or immoral transaction. The defendant, to avoid his own conveyance, avers his fraud,, his illegal and immoral conduct and purposes. He in fact becomes the actor, and seeks the assistance of the court to relieve-him from the toils of his own invention. No court has as yet given such assistance. Truth and fair dealing are rules of universal obligation. If men in consummation of frauds, employ instruments, binding and conclusive in their legal operation and effect, it is sound reason, good policy, sheer justice, to leave-them where they have placed themselves, bound as they have-bound themselves, without assistance from the courts to unloose thein, when it becomes their interest to be unloosed, encouraging-them and others to commit similar frauds.

4. No question of adverse possession arises on the facts in. the record. The grantor, it is true, remained in the actual and continuous possession of the lands, taking the rents and profits. But the possession was not hostile to the title of the grantees,, or so intended. On the contrary, it was intended to be in subordination to their title, if the creditors of the grantor sought to reach and subject the lands. Hostility to the title of the-true owner is an essential element of adverse possession, and a. possession can not be adverse, which in any contingency is intended to be in subservience and subordination to the true titlel

We find no error in the record, and the. judgment is affirmed..