Collier v. Carlisle , 133 Ala. 478 ( 1901 )

TYSON, J.

The bill in this cause was filed to remove an alleged cloud upon the title asserted by complainant to certain lands described in the bill, and to enjoin the execution of a writ of possession for the land by respondent issued upon a judgment in ejectment obtained by him against one Hayes, who was, at the time of the rendition of the judgment in the possession of the land. On the final hearing, the bill was dismissed and this appeal is prosecuted from that deeree.

It is averred in the bill that complainant is in the actual possession of the land and has the legal title to it. She claims title as shown by her pleadings through mesne conveyance from her husband. Her claim of title is stated to be, a mortgage executed by her husband to J. C. Henderson of date April 1, 1891,, a transfer of that mortgage by Henderson to one Lane of date February 19, 1895, a transfer by Lane to complainant on November 22, 1895, deed by complainant and her husband on foreclosure of mortgage to one Robertson of date April 6, 1896, and a deed from Robertson and wife to complainant of date December 31, 1896.

Neither of the transfers of the mortgage were recorded and the deed to Robertson and the one from Robertson to complainant were not recorded until March 8, 1899. Nor was the execution of the transfers or assignment of the mortgage proven.

In his answer, the respondent denies the complainant’s title and possession and asserts title in himself, claiming to have derived it under a sheriff’s deed executed to him by virtue of a sale under an execution issued upon a judgment obtained by him against the complainant’s husband in 1895. It is also averred that the alleged transfer by Lane to complainant was made to hinder, delay or defraud the respondent, who at that time was a creditor of the husband. That the complainant furnished no part of the money paid Lane,1 but that it- belonged to her husband, the mortgagor. It is further averred that the deed to Robertson and the one from him to complainant was without consideration, and that Robertson never went into possession of the land as purchaser at the foreclosure sale or otherwise, or exercised any acts of ownership over it; but that these deeds were a part of the scheme of complainant and her husband to defraud the respondent as a creditor of the husband and to put the land beyond his reach.

Under the issues thus presented by the pleadings it is entirely clear that the burden was upon the complainant to establish her title and possession as alleged. The paper purporting to be a transfer or assignment of the mortgage, by Henderson to Lane and by Lane to complainant ivas not self-proving. The respondent not being a party to it, proof of its execution should have been made. This was not done. The objection to its introduction in evidence by respondent on that ground should have been sustained. With these transfers eliminated, the complainant has failed to prove her title as alleged. Nor do we think that she has discharged the burden of proving her possession of the land at the date of the filing of the bill. The preponderance of the testimony shows that Bragg and Pritchett rented the land for the year 1900 from Mrs. Hayes, who was in possession as the tenant of the respondent. That after renting the land from her, they at the instance of complainant’s husband attempted to attorn to the complainant as her tenant for that year. It is only by and through this tortious act of theirs and hers, that she claims to be in possession. This is not such a possession as a court of equity will protect. — Fleming v. Moore, 122 Ala. 399, and authorities therein cited. It is of no consequence that their rental contract with Mrs. Hayes may have been void, under the statute of frauds. They acquired the possession from her and they cannot be permitted, without first surrendering the possession to her, to dispute her title or her right to the possession.

Furthermore, the defense of fraud set up in respondent’s answer was a good one and imposed upon complainant th,e burden of shoving a consideration paid by her for the land, since respondent’s debt was a subsisting one at and prior to the transfer of the mortgage to her by Lane, if ever made, and the execution of the other conveyances through which she claims title. — Kelley v. Connell, 110 Ala. 543; Wood v. Riley, 121 Ala. 160. It is of no consequence that the ansAver was not made a cross-bill seeking affirmative relief against these several conveyances Avhich are alleged to have been made to hinder, delay or defraud this respondent in the collection of his debt against the husband. If fraudulent, as alleged, she cannot invoke the aid of a court of conscience to protect a possession acquired under thorn. The complainant having utterly failed to meet the barcíen of proof cast, upon her by this defense she must fail.

There'is no error in the record, and the decrci must be affirmed.