Rankin Mfg. Co. v. Bishop , 137 Ala. 271 ( 1902 )

SHARPE, J.

This action was for the possession of an undivided interest of one-third in a tract of land called “the Reese place.” Defendants other than E. B. Bishop are his tenants. Plaintiffs and defendant E. B. Bishop each claim to derive title through William A. Bishop, who, in the Reese place, owned a common and equal interest with D. B. Bishop and Clifford O. Bishop who is now'- Clifford C. Johnson, until January, 1891. Then William sold and conveyed his interest to his wife, Mary L. Bishop, who in December, 1891, contracted to sell it to defendant E. B. Bishop and who. accordingly together with her husband, and for a fair consideration, amounting to $1,931, executed to defendant E. B. Bishop, a deed to that interest on April 16, 1892. This deed wasi not recorded until October 19th, 1899.

On December 6th, 1892, plaintiffs, who were simple contract creditors of William. A. Bishop, together with other such creditors, filed in chancery, a, bill against William A. and Mary L. Bishop, alone seeking to have the conveyance to the latter declared fraudulent and to have the property embraced therein subjected to debts of William A. Bishop. Mary L. Bishop, in answering the bill, disclaimed all interest in the property here involved but made no suggestion as to who had the title thereto. This part of the answer was adopted by William A. Bishop into his answer to the bill. In that suit a decree was rendered March 20th, 1895, declaring that conveyance void, and directing a sale of the property. Thereunder on September 19th, 1899, a sale Avas made at which these plaintiffs bought, and received the register’s deed to, the third interest in controversy at the price of fifty dollars, which Avas paid by crediting that sum on their debt against William A. Bishop.

Plaintiffs do not say defendant’s purchase from Mary L. Bishop Avas in bad faith, or that the interest of defendant E. B. Bishop, he being a stranger to the chancery suit, Avas affected by the adjudication AAdiich Avas therein made against the validity of his grantor’s title. The contention for plaintiffs’ superiority in title over E. B. Bishop is based solely on the asserted ground that they obtained the decree and purchased the property at the chancery sale for a valuable consideration without notice of E. B. Bishop’s purchase, and that in consequence the latter’s deed being unregistered, is as to them void under the provisions of section 1005 of the Oodei.

Actual notice of a transfer of land is as effective as against subsequent purchasers as is registration of the instrument which effects' the transfer, and notice of facts Avhich ought to put such purchasers on inquiry Avhich if pursued Avith proper diligence would lead to knoAvledge of the transfer is equivalent to actual notice. Accordingly as a general rule, possession taken and held under an unrecorded conveyance supplies the place of registration as. against creditors and subsequent purchasers. — Tutwiler v. Montgomery, 73 Ala. 263; Brunson v. Brooks, 68 Ala. 248; Sawyers v. Baker, 66 Ala. 292; Burt v. Cassety, 12 Ala. 734; Fenno v. Sayre, 3 Ala. 734. But this rule does not apply Avhere there has been no visible change of possession. King v. Paulk, 85 Ala. 186; Troy v. Walters, 87 Ala. 233; Watt v. Parsons, 73 Ala. 202. And it has been held that the possession to operate a notice must be “open, visible, exclusive and unambiguous, not liable to be misconstrued or misunderstood.” — Wells v. American Mort. Co. etc., 109 Ala. 430; Brunson v. Brooks, supra.

The bill of exceptions discloses the following facts Avhich, in addition to those above stated, bear on the question of notice. Neither of the original tenants in common of the Iteese place ever occupied it personally. They had tenants aaTlo occupied it and paid rent to the joint owners. I). B. Bishop conveyed his third interest in the Beese place to E. B. Bishop by a deed made and recorded in 1891. In December, 1891, or January, 1892, defendant E. B. Bishop after having contracted Avith Mary L. Bishop for her interest, assumed the management of the Beese place and at the beginning of 1892, he informed the tenants of the change in ownership and made Avith them new contracts of rental and under him alone the same tenants remained on the place during that year. When he began to manage the place, E. B. Bishop lived about three miles from it, and from the time he so began he Ayent on it nearly every day until August, 1892, when he moved into what is called the large landlord’s house situated on the Reese place and ever since has continued to live there openly claiming the place as his, and enjoying its rents and profits exclusively and without molestation and in ignorance of the pendency of the chancery suit until after the sale was made under the decree. On January 10th, 1893, Clifford C. Johnson conveyed to defendant the third interest outstanding in her by a deed which purported to convey the whole interest in the Reese place, and which was recorded September 4th, 1894.

The disclaimer of Mary L. Bishop in the chancery suit gave notice in solemn form of her lack of ownership in the property, and was equivalent to a suggestion if not an assertion that she had conveyed the interest received through the deed of William L. Bishop. The identity of her grantee, or of the owner of the property then sought to be subjected to the debt of plaintiffs, was a matter then calling specially for their investigation, because of the necessity of making parties to that suit, all persons whose interests were to be bound by the decree. Hence, the disclaimer was naturally calculated to turn inquiry on the character of E. B. Bishop’s, possession which, at least from the time he moved on the land, was in fact visible and exclusive. ¡Such inquiry if pursued by plaintiffs, as it ought to have been, could hardly have failed to bring them knowledge of the acquirement of E. B. Bishop, of the property here in controversy. Under the evidence plaintiffs were chargeable with notice of E. B. Bishop’s possession and were not entitled to protection as against the older title under which he and the other defendants claimed; hence, the trial court’s action in giving the, charge requested by defendants and in refusing the charge requested by plaintiffs was correct.

Judgment affirmed.