Opinion
1 Div. 222.
November 2, 1922. Rehearing Denied December 7, 1922.
Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.
Barnett, Bugg Lee, of Monroeville, and Stevens, McCorvey, McLeod Goode, of Mobile, for appellants.
Equity, regarding that as done which ought to be done, will fix the effective date of the mortgage from Dennis to the respondents as October 19, 1919, the day on which the sale of the land was made, the mortgage agreed upon, and part payment made. 1 Jones, Mortg. (7th Ed.) § 164; 1 Jones, Liens, § 77. A mortgagee is a purchaser entitled to protection against unrecorded prior conveyances of which he has no notice. 66 Ala. 600; 38 Ala. 125. The possession of real estate by a vendee under an unrecorded deed operates as constructive notice of his right only when his possession is open, visible, exclusive, and unambiguous; such vendee's possession jointly with his vendor is not such notice. 109 Ala. 430, 20 So. 136; 175 Ala. 484, 57 So. 837; 72 Ala. 332, 47 Am. Rep. 418; 153 Ala. 443, 45 So. 251; 143 Ala. 597, 42 So. 110. Possession of standing timber by one other than the general owner of the land is a legal impossibility precluding an application of the doctrine of constructive notice by possession. A party sought to be charged with notice of an unrecorded timber deed must be shown to have had actual notice. 175 Ala. 484, 57 So. 837.
Smith, Young, Leigh Johnston, of Mobile, and Hamilton, Page Jones, of Evergreen, for appellee.
Not having been pleaded, appellants can avail nothing by the contention that the mortgage was really made on October 19, 1919. 125 Ala. 372, 28 So. 30; 200 Ala. 638, 77 So. 12. But, if it be conceded that the mortgage should be treated as having been executed on that date, appellee is an innocent purchaser, having had no notice of that trade. 139 Ala. 293, 35 So. 877. Possession of standing timber is not an impossibility; and a person may have such possession as gives notice that he is claiming the timber. 81 Minn. 15, 83 N.W. 471, 83 Am. St. Rep. 362; 175 Ala. 184, 57 So. 724, Ann. Cas. 1914C, 1119; 205 Ala. 13, 88 So. 129; 64 Ala. 388; 119 Ala. 325, 24 So. 545; 172 Ala. 669, 55 So. 190; 178 Ala. 382, 59 So. 658.
The contest in equity is between a grantee and a mortgagee as to the superiority or initial right or title to standing timber.
The true date of execution and delivery of a mortgage may be shown by parol evidence (Formby v. Williams, 203 Ala. 14, 81 So. 682) under appropriate pleading. This is not available to appellants, since this material fact is not properly set up in their answer and cross-bill to authorize proof that the true date of the Dennis mortgage was October 19 (antedating appellee's deed), and not October 30, according to its purport and as it is averred in paragraph 4 of answer and cross-bill. The requirements of equity pleading are stated in Heflin v. Heflin (Ala. Sup.) 93 So. 719; Manchuria, etc., Co. v. Donald, 200 Ala. 638, 639, 77 So. 12; Smith Son v. Securities Co., 198 Ala. 493, 73 So. 892; Gamble v. Aultman Co., 125 Ala. 372, 376, 28 So. 30.
Ante, p. 69.
If it was the intention of respondents to make the contention that said mortgage gave a lien (Autauga Co. v. Chambliss, 200 Ala. 87, 75 So. 463) which was of the date anterior to complainant's deed and fixing their superior equity or title, such material fact must have been so pleaded; failing in this, they may not claim the benefit on submission of such a superiority if that fact be established by the evidence. Millard v. Millard, 221 Ill. 86, 77 N.E. 595. This was an affirmative defense (the superiority of lien or equity), the burden of which was upon the respondents to aver and prove. The instant answer did not apprise complainant of that defense sought to be resorted to, nor did it (as to the change of date) afford opportunity for preparation and rebuttal which is the purpose of pleading to which a complainant is entitled with respect to a matter of defense affirmative in character and relied upon to defeat the prima facie case made by the bill. 1 Sims' Ch. Pr. §§ 483-485; 10 R. C. L. § 211, p. 446; 21 C. J. § 545, p. 471.
Mr. Daniell says of the sufficiency of such an answer:
"It is, however, of great importance to the pleader, in preparing an answer, to bear in mind that, besides answering the plaintiff's case as made by the bill, he should state to the court, upon the answer, all the circumstances of which the defendant intends to avail himself by way of defense; for a defendant ought to apprise the plaintiff, by his answer, of the nature of the case he intends to set up, and that, too, in a clear, unambiguous manner; and, in strictness, he cannot avail himself of any matter in defence which is not stated in his answer, even though it should appear in his evidence." 1 Daniell's Ch. Pl. Pr. (5th Ed.) star pages 712-713.
This rule is the subject of section 488 of Sims' Ch. Pr. p. 326.
Aside from the foregoing, the president of appellee (Lindsey Mill Company) testified that he was actively in charge of the affairs of that company, and had no knowledge or notice of Pake and Staples' claim or alleged equity until long after the purchase of the land by his company. That is to say, complainant proved that it was a purchaser for value, and therefore the burden of going forward with the evidence shifted to the respondents in original bill to prove notice (Brooks v. Griel Bros., 202 Ala. 607, 81 So. 549) of defendants' alleged prior equity growing out of the contract of purchase of the lands and carried into the mortgage of date of October 30, 1919, by Dennis to Pake and Staples. There is no such proof on the part of such respondents whose mortgage was not filed for record until November 8, 1919. Complainant is within the protection of section 3383 of the Code. Taylor v. Burgett (Ala. Sup.) 207 Ala. 54, 91 So. 786. The rule as to a bona fide purchaser is:
"* * * 'That the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative, defensive matter in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. "Ei incumbit probatio qui dicit." This done, he need not go further, and prove he made such purchase and payment without notice. The burden here shifts, and if it be desired to avoid the effect of such purchase and payment, it must be met with counterproof that, before the payment, the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on inquiry, which, if followed up, would discover the equity or incumbrance.' Hodges v. Winston, 94 Ala. 578; Bynum v. Gold, 106 Ala. 434." Ely v. Pace, 139 Ala. 293, 298, 35 So. 877, 878.
It has been declared that the open, notorious, and exclusive possession of real property by a vendee holding under an unrecorded conveyance, and claiming the land as owner, is constructive notice of his title; where, however, the possession of the vendor and vendee was joint at the time of the sale and conveyance, and the ambiguity is not relieved by the vendee's subsequently vacating his occupancy, this rule would not obtain. McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418; Autauga Bank Trust Co. v. Chambliss, 200 Ala. 87, 75 So. 463; Holly v. Dinkins, 202 Ala. 477, 80 So. 861.
Under the pleading and proof, respondents in original bill (Pake and Staples) must rest their claim upon the mortgage of Dennis to them as of the date it bears (October 30, 1919), and complainant's claim rests upon its deed from Dennis to Lindsey Mill Company of date of October 20, 1919. The evidence shows that before October 20, 1919, said grantee was not in possession of the land, but that on the next day after the conveyance its president (the active head and management of the corporation) actually took possession of the land for the corporation, and it was in its open, notorious possession, proceeded with the construction of the sawmill, builded houses (commissary, blacksmith shop, and houses for employees), constructed a railroad or spur track, cutting timber and hauling logs to the mill. Such open, notorious, and visible acts of ownership in the timber standing on the land, was such notice of which it was susceptible to all the world of its possession and of the exercise of the right or claim of ownership by the vendee under the deed of date of October 20, 1919, and from that date.
In McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, the question of adverse possession of timber standing on lands, to which the fee was in another, held a physical fact that, according to the circumstances of the occupancy, may be sufficient to operate as notice to an adverse party claiming the timber or as calculated to stimulate inquiry, which, if followed up, would result in actual knowledge to other claimants. Holly v. Dinkins, 202 Ala. 477, 80 So. 861. In Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129, respondent had set up adverse possession, cutting timber under contract to the time of the institution of the suit, erected houses for employees, and a saw and planing mill, constructed a commissary on and a railroad across the land. Held, that such "actual possession" was shown of the timber "as placed upon complainant the duty of first instituting an action at law." And the case of Christopher v. Curtis-Attalla Lumber Co., 175 Ala. 484, 57 So. 837, approving Bolland v. O'Neal, 81 Minn. 15, 83 N.W. 471, 83 Am. St. Rep. 362, was approved. These rulings were followed in McMillan v. Aiken, supra, declaring:
"Cessation of use of timber land in accordance with neighborhood custom and in conformity to some natural condition or agency making the custom necessary would not be an interruption of the user's possession if, when resumed, the use was connected with acts of possession which had gone before so as to become a part or continuation thereof, and not merely several occasional, desultory, or temporary acts of intermittent trespasses, so that, where the claimant of timber land at one time in the year deadened and cut trees thereon, and at another time in the year ran the timber off when there was a freshet, continuing these operations from year to year, possession was uninterrupted."
The possession of land essential to raise the duty of inquiry on the part of a purchaser is said to be "generally sufficient if it is such a visible possession as would naturally suggest inquiry upon the part of an ordinarily prudent person intending to purchase, though it must be open, notorious, and exclusive, as regards the purchaser's vendor, and, in consequence, unambiguous and unequivocal. O'Neal v. Prestwood, 153 Ala. 443, 449, 450, 45 So. 251; Simmons Creek Co. v. Doran, 142 U.S. 417, 442, 443, 12 Sup. Ct. 239, 35 L.Ed. 1063; 23 Ency. Law, pp. 504-506. The annual cultivation of land is one of the recognized evidences of a possession giving rise to the duty of inquiry by an intending purchaser." Sloss-Sheffield S. I. Co. v. Taff, 178 Ala. 382, 389, 59 So. 658; Evans v. Bryan, 202 Ala. 484, 80 So. 868.
The acts of possession of the complainant over the standing timber in question for the purposes of cutting and preparing the same for market were such evidences of its possession and claim of ownership as that subject was susceptible, and that such acts of ownership were sufficient to suggest and stir to an inquiry that would have led to a full knowledge of the facts upon the part of an ordinarily prudent person intending to purchase.
Moreover, there was evidence that one of respondents (Mr. Pake) had possession and knowledge of facts making due inquiry imperative — that called for inquiry, and everything to which inquiry would lead. Holly v. Dinkins, 202 Ala., 477, 80 So. 861; Veitch v. Woodward Iron Co., 200 Ala. 358, 76 So. 124; Alexander v. Fountain, 195 Ala. 3, 70 So. 669; Carroll Mercantile Co. v. Harrell, 199 Ala. 87, 74 So. 252. That is, the means of knowledge is the equivalent of knowledge, where there is the duty to inquire. Gill v. Moore, 200 Ala. 511, 520, 76 So. 453, for authorities; Evans v. Bryan, 202 Ala. 484, 80 So. 868; Street v. Treadwell, 203 Ala. 68, 82 So. 28; People's Bank v. McAleer, 204 Ala. 101, 85 So. 413.
We have carefully considered the evidence, and are of opinion that the decree of the circuit court, in equity, should be in all things affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.