Opinion
6 Div. 919.
October 18, 1923.
Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.
Harsh, Harsh Harsh, of Birmingham, for appellants.
It is not necessary in an action for breach of a covenant against incumbrances, or of warranty of title to set out the incumbrance, or the paramount title with particularity. 15 C. J. 1306; Prestwood v. McGowin, 128 Ala. 267, 29 So. 386, 86 Am. St. Rep. 136; Copeland v. McAdory, 100 Ala. 556, 13 So. 545. Where there is a scintilla of evidence from which an inference adverse to the theory on which the affirmative instruction is asked can be drawn, same should be refused. Crandall-Pettee v. Jebeles Colias, 195 Ala. 152, 69 So. 964; Culver v. Ala. So. R. Co., 108 Ala. 30, 18 So. 827; L. N. v. Hutcherson, 174 Ala. 609, 57 So. 379; A. G. S. v. Robinson, 183 Ala. 265, 62 So. 814; Copeland v. McAdory, 100 Ala. 553, 13 So. 545. Defendant S. J. Gaines was a party to the suit in the chancery court, and in view thereof there was no need of notice to him. 15 Corp. Jur. 1256; Rice v. Cook, 141 Mo. App. 1, 120 S.W. 1191; Cover v. McAden, 183 N.C. 641, 112 S.E. 817; Richstein v. Welch, 197 Mass. 224, 83 N.E. 417. The direction of a verdict in favor of defendant D. V. Gaines was improper. Shipp v. Shelton, 193 Ala. 658, 69 So. 102. A judgment of a court of general jurisdiction cannot be attacked collaterally on parol testimony. L. N. v. Tally, 203 Ala. 370, 83 So. 114; Dunklin v. Wilson, 64 Ala. 162.
Vassar L. Allen, of Birmingham, for appellees.
No brief reached the Reporter.
So far as the right of action is concerned, it is never necessary for the plaintiff to have notified his warrantor of the breach of any of his covenants of warranty in a deed conveying real estate before bringing his suit for damages.
Such a notice to the warrantor, with a demand that he appear and defend a pending suit, is necessary if the warrantee would make an adverse judgment against himself in that suit conclusive evidence against his warrantor of the existence and superiority of the hostile title or incumbrance therein asserted, and necessary, also, if the plaintiff would recover of the warrantor any special damages incurred in the defense of that suit. Chestnut v. Tyson, 105 Ala. 162, 16 So. 723, 53 Am. St. Rep. 101; Graham v. Tankersley, 15 Ala. 634, 644; 15 Corp. Jur. 1265, § 97. Those grounds of demurrer, based on the theory that the complaint should contain an allegation of such notice, were not well taken.
The allegation of each count that the premises were, by reason of the breach complained of, lost to plaintiffs, and that plaintiffs were deprived of their use and possession, was clearly sufficient as against the first and second grounds of demurrer. The sixth ground of demurrer is also without merit, since the complaint does not show that any action was brought against plaintiff involving the title, and, if it did, the failure to defend it would not affect his right of action. It follows that the demurrer was erroneously sustained, on whatever ground.
On the theory that there was no evidence tending to show any outstanding superior title or incumbrance, constituting a breach of any of the covenants declared on, the trial judge directed the jury to find for the defendants.
Plaintiffs had introduced in evidence a final judgment rendered by the circuit court, in equity, of Jefferson county, in favor of the Louisville Nashville Railroad Company and against Smith and Riall, plaintiffs herein, and S. J. Gaines, defendant herein, all of them being co-respondents in said equity suit in which it was declared that none of said respondents had any right, title, or interest in or incumbrance upon the property in question. As to this decree, the records offered showed decrees pro confesso against each of the respondents, and also due service of the summons on S. J. Gaines by the sheriff of Jefferson county. This judgment, we are bound to hold, was conclusive on the defendant S. J. Gaines as to the existence of a superior outstanding title in the complainant railroad company, and showed a breach of several of the covenants sued on, plaintiffs having made proof that they had not, since the execution of the deed to them by defendants, made any conveyance of the land whatever to any one. Chestnut v. Tyson, 105 Ala. 149, 162, 16 So. 723, 53 Am. St. Rep. 101; 8 Am. Eng. Ency. Law, 207.
Where the warrantor is made a party to a suit to quiet title to land he has conveyed to another, jointly with his grantee, there is no necessity, and indeed there can be no possible reason, for requiring such grantee to notify his warrantor of the pendency of the suit, and to request him to defend. In such a case the relation of the co-respondents, and the express undertaking of the warrantor, imposes upon him the duty of defending the title against the adverse claimant. Rice v. Cook, 141 Mo. App. 1, 120 S.W. 1191; Cover v. McAden, 183 N.C. 641, 112 S.E. 817.
The trial court erred in permitting the defendant S. J. Gaines to testify that the summons in the case referred to was not in fact served on him. In a collateral proceeding like this, a judgment cannot be impeached by the testimony of a defendant that the sheriff's return showing service on him is false. Dunkin v. Wilson, 64 Ala. 162.
But, apart from the effect of that judgment, there was other evidence tending to show that the defendant S. J. Gaines had no title to the land conveyed; for Riall testified that Gaines said to him, when informed of the suit by the railroad company, "I knew at the time I was writing that deed that it wasn't worth the paper it was written on." This was in effect an admission by Gaines that he had no title to the land conveyed; and, if the jury believed he made the statement, and that the statement was true, it was enough at least to impose upon him the burden of neutralizing its effect. For the reasons stated, the trial judge erred in directing a verdict for defendants, and the judgment will be reversed and the cause remanded for another trial.
Of course, Mrs. Gaines' special plea setting up the fact that she executed the deed merely for the release of her dower, and not as an owner, presented a good defense for her. But the burden of proving the plea was upon her, and, although she offered such proof, an instruction to find for her on that plea should be given only with the usual hypothesis that the jury believe the evidence.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.