Carter Bros. v. Challen , 83 Ala. 135 ( 1887 )

SOMEBYILLE, J.

— A question of controlling importance is the ownership of the money which was paid to the sheriff, in satisfaction of the amount bid for the land at the sheriff’s sale by James Challen. The Chancellor found that this money was the property of the complainant, William Challen, and that its payment created in his favor an equity by way of resulting trust, which attached to the legal title, if any was conveyed by the sheriff’s deed executed to James Challen. We have examined the testimony accurately, and are of tbe opinion that it sustains the Chancellor’s finding, admitting the rule, in all its force, that the evidence of a trust in such cases must be full, clear and convincing.

This money is shown to have been paid a few days after the sale, and before the execution of the sheriff’s deed. The inference is not unfair, that this conveyance was made by mistake. It does not appear that complainant was cognizant of it. He remained in possession and control of the premises, and the reputed purchaser not only did not claim possession or ownership, but expressly on one occasion repudiated any claim to the property. The testimony lends no support to the view, that the money was advanced as a loan to James Challen. Nor is any fraud proved on the part of the complainant. Under the authorities, the evidence sustains satisfactorily the creation of a resulting trust. — Bates v. Kelly, 80 Ala. 142.

It is contended by the appellants, Carter Bros. & Co., that this equity of the complainant can not prevail against the alleged lien of their execution, the enforcement of which is sought to be enjoined in this suit. Their judgment debtor is William P. Challen, whose title, if any, was derived by inheritance from his uncle, James Challen, the alleged purchaser at the sheriff’s sale.

There is one sufficient reason, if not more, which, in our opinion, render’s the equity of the complainant superior to the alleged lien of the appellants. The continued possession of the premises in controversy by the complainant, was a fact of sufficient import to charge the appellants, Carter Bros. & Co., with notice of the existence of this equity, being as effectual for this purpose as the registration of a legal title would be. This fact of possession was sufficient to put the appellant on inquiry; and this inquiry, if properly pursued, would have led to knowledge of the equity in question. Tutwiler v. Montgomery, 73 Ala. 263; Brunson v. Brooks, 68 Ala. 248. The statute declares that “no trust, whether implied by law, or created or declared by the parties, can defeat the title of creditors, or purchasers for valuable consideration, without notice.” — Code, 1876, §2200. The word “creditors,” as often decided, here means judgment creditors having a lien. — Dickerson v. Carroll, 76 Ala. 377; Preston v. McMillan, 58 Ala. 84. The appellants can claim priority on no other ground than by bringing themselves within the class protected by this statute. This they can not do, if it appears that they have notice of the complainant’s title, actual or constructive. As we have said, the fact of complainant’s possession charges them with such notice.

The decree of the Chancellor perpetuating the injunction is free from error, ejnd must he affirmed.