Vary v. Sensabaugh , 156 Ala. 459 ( 1908 )

ANDERSON, J.

Both sides claim title under Theodore Smith; the plaintiff claiming under a deed pursuant to a judicial sale, and the defendants under a deed direct from said Smith. The defendants were permitted, over the objection of the plaintiff, to prove a deed from Smith to Brown, which said deed was never recorded; nor was there any proof of Brown’s possession when the plaintiff bought the land or when the marshal was ordered to sell same. Sensabaugh, who was holding-under Smith, and not Brown, was in possession. Therefore the deed from S'mith to Brown was void as to this plaintiff, under sections 1005 and 1007 of the Code of 1896, and should have been excluded by the trial court. There was proof that Brown went into possession, but it was surrendered back to Smith before the purchase of either of the parties to this suit, and, as Brown did not reconvey to Smith, the defendants do not hold under Brown, and their possession cannot operate as notice of the unrecorded conveyance to Brown. The case should therefore be considered with said -deed eliminated. The defendants cannot be innocent purchasers from Smith; as the legal title to the lot was in him, and they-are charged with notice of his bankruptcy and the proceedings connected therewith, and there is nothing to show that Sensabaugh. relied on ‘ any title held by Brown in purchasing the property from Smith.

Sensabaugli not holding under Brown, his possession was not such as to put plaintiff on notice of the deed from Smith to Brown; nor was proof of his said possession admissible to show that the deed from Wallace, trustee, to the plaintiff, was inoperative, because the “property was at the time adversely held. The rule against recovery on a title acquired while the property was held adversely does not apply when the property was purchased at a judicial sale. — Sibley v. Alba, 95 Ala. 199, 10 South. 831; Humes v. Bernstein, 72 Ala. 546. This case having been tried by the court without a jury, and the conclusion being properly presented to us for review, and the plaintiff’s evidence showing in him the title to the property, the judgment of the city court is reversed, and one is here rendered for the plaintiff for the lot in question.

Reversed and rendered.

Tyson, C. J., and Simpson and McClellan, JJ., concur.