Troy v. Walter Bros. , 87 Ala. 233 ( 1888 )

STONE, C. J.

We are asked in this case to review our ruling in King v. Paulk, 85 Ala. 186; s. c., 86 Ala. 332. That case was followed and re-affirmed in Fitzgerald v. Williams, 85 Ala. 585. And each of these cases followed, substantially, our older rulings in McCarthy v. Nicrosi, 72 Ala. 332, and Watt v. Parsons, 73 Ala. 202. They rest on the solid ground, that a change of title, or ownership, without visible change of possession, is neither actual nor constructive notice. We consider that ruling as resting on justice and solid reasoning, and are not inclined to depart from it.

It is contended for appellees, that when Ferrell agreed to sell to Walter Brothers, the tenants attorned to the latter; and that this operated as constructive notice to all persons who claim to have acquired liens or rights affecting the property after that time. Tutwiler v. Montgomery, 73 Ala. 263; Brunson v. Brooks, 68 Ala. 248, and Brewer v. Brewer, 19 Ala. 481, are relied on in support of this view. But the appellees do not bring themselves within the principle of Tutwiler v. Montgomery. There is not only no proof that the tenants in possession of the lands when Ferrell sold to Walter Bros, attorned to the latter, but the proof is express that they did not. They remained Ferrell’s tenants, and paid the accruing rent to him; and there was no testimony that Walter Bros, had taken any kind of possession under their alleged purchase.

Troy, by his purchase at marshal’s sale, acquired a title to the lands, to continue during Ferrell’s life, that is superior to all other rights presented by this record. —Preston v. McMillan, 58 Ala. 84; 2 Pom. Eq. § 724; Dickerson v. Carroll, 76 Ala. 377.

In scaling the amount of purchase-money for which the Walter Bros, are liable, should they be held to their purchase, the rule of the inverse ratio of the alienation of the purchase-money notes will furnish the proper guide.

Beversed and remanded.