Pique, Manier & Hall v. Arendale , 71 Ala. 91 ( 1881 )

BRICKELL, C. J.

The general rule relied upon by the appellants, in support of the exception to the admission of evidence showing the precise consideration of the conveyance from Partin to Arendale, and of the exception to the refusal of the second instruction requested, is unquestioned. The consideration clause of a deed can not be varied by parol evidence in a contest between the grantee and the creditors of the grantor. If the deed recited only a valuable consideration, it can not be supported by evidence of a good consideration. Or, if it recited only a good consideration, it can not be supported by evidence of a valuable consideration. . But the rule is not that the precise consideration must be proved, as it may be recited. Any consideration, greater or less, of tbe same kind, may be shown, and will support the conveyance, if otherwise fair. In this respect the matter of consideration is open to parol evidence in any direction. Thus, if the deed should recite as its consideration one dollar in hand paid, evidence that the real consideration was the present or precedent debt of the grantor of one thousand dollars would be admissible; or it woiud be admissible to show that the purchase-money was not paid, but secured by the promise of the grantor to pay it. The character of the consideration would not be varied; that recited and that proved would not vary in kind, but only in degree, and either would be sufficient for the common purpose of expressing the consideration, estopping the grantor from denying-its existence, and rebutting the presumption of a resulting trust. It was entirely proper to permit Arendale to show that the real consideration of the conveyance under which he claimed title to the premises in controversy, was not money passing from him to the grantor, but payment of a debt or a legal liability, duo from or resting upon the grantor, and the promise to pay the grantor a specific sum of money.—Murphy v. Br. Bank Mobile, 16 Ala. 90; Potter v. Gracie, 58 Ala. 303; Hubbard v. Allen, 59 Ala. 283.

If the evidence had shown or tended to show a different consideration from that expressed in the deed, it would not only have been regarded with suspicion, but would have been inadmissible. Or if there had been a gross exaggeration of the consideration, attended with other badges of fraud, the exaggeration would have been a suspicious circumstance. But it is not true, as the second instruction requested, when construed in connection with the evidence, must be regarded as asserting, that the expression of the consideration of money paid, and proof that the actual consideration was the payment of a debt, or the promise to pay money, is regarded with suspicion. It is too frequent to express money paid as the consideration, with much of indifference as to the sum, whenever a valuable consideration of any species is the actual, consideration, for suspicions of unfairness or jealousy of the transaction to be indulged, in the absence of all badges of fraud.

The statute pronounces void, as to purchasers for a valuable consideration, mortgagees and judgment creditors, without notice, all conveyances of unconditional estates in lands, or mortgages or instruments in the nature of a mortgage, conveying real property to secure a debt created at the date thereof, unless recorded within three months from their date. — Code of 1876, § 2166. Notice of the conveyance, by the terms of the statute, equally with registration, preserves its validity. Before the appellants obtained judgment against Partin, before they were in relation to claim the protection of the statute as against the conveyance to Arendale, tbe actual possession of the premises bad passed in accordance with the terms, legal effect and operation of the conveyance, from Pa-rtin to Troxwell, who entered and was holding visibly and notoriously as the tenant of Aren-dale. For a long period of time it has been the doctrine of this court, announced in numerous decisions, that as to judgment creditors, the open possession of lands accompanied with acts of ownership — to employ the words of OrmoND, J., in Burt v. CXssity, 12 Ala. 739 — “is an implied notice, quite as effectual as the implied notice from the registry of the deed, and as potent in its effects as an actual notice of the existence of the deed before the judgment was obtained.” The visible possession of land, the exercise of dominion over it, the taking of its rents and profits, must be sufficient in itself and of itself to put any man of ordinary prudence, seeking to acquire an interest in the land, or to charge it, in hostility to the possessor, upon inquiry as to the right in which the possession is claimed. Putting him upon inquiry, it must operate to perfect and secure the title of the possessor as effectually as the registry of his title deeds.— Ohio Life Ins. & Trust Co. v. Ledyard, 8 Ala. 866; Smith v. Zurcher, 9 Ala. 208; Daniel v. Sorrells, Ib. 436. Of the conveyance from Partin to Arendale, the appellants are chargeable with notice at the time of the rendition of their judgment, and as the possession was continuous until the sale by the sheriff, having notice, the neglect of Arendale to register the conveyance is not material to them. There was no evidence tending to show that the rescission of the contract of sale, so far as it formed part of the consideration of the conveyance, was not an adequate consideration. It is not of importance whether that consideration is regarded as a debt preexisting the conveyance, or as cotemporaneous with its execution. In either view, in the absence of all evidence of unfairness, or that from any improper motive it was imported into the consideration, it is not material wether it is regarded as a present or as an antecedent debt, satisfied or surrendered; either is a valuable consideration.

"We find no error in the record, and the judgment must be affirmed.