Sloss-Sheffield S. & I. Co. v. Lollar

DOWDELL, C. J.

Prom a final decree of the chancellor, rendered on a submission of the cause on the pleadings and proof, the present appeals, direct and cross, are taken. The Sloss-Sheffield Steel & Iron Company, hereinafter designated as the Sloss Company, was respondent in the original bill and the complainant in the cross-bill. L. W. Lollar was complainant in the original and respondent in the cross bill.

L. W. Lollar filed his bill under the statute (section 5443 et seq., of the Code of 1907) for the purpose of quieting title and compelling a determination of claims to the land described in the bill. The lands, the title and claims to which are sought to be quieted and determined, consist of the minerals in the following described land: S. W. % of S. E. %, section 22, and S. *245 i/2 of N. W. y4 and W. y2 of N. E. % and Si E. % of N. E. % and N. % of S. El *4, section 27 all in township 15, range 7, and situate in Walker county, state of Alabama. The bill contained all of the necessary aver-ments under the statute. The S'loss Company answered the bill, setting forth in its answer, pursuant to the requirements of the statute (section 5445), its title and claim to the lands in question. The answer of the respondent contained other' averments as a predicate for affirmative relief, and to that end was made a cross-bill with appropriate prayer.

Both parties claim title through a common source. It appears that some time prior to the year 1876 Edmund I. Adcock entered the land in question, it being United States government land, and died in possession of it, leaving surviving him his widow, K. E. Adcock, and three children — William Adcock, a son, and two daughters, F. A. Adcock and A. J. Adcock. The two daughters subsequently married, and are known in the record here as Mrs. F. A. Miller and Mrs. A. J. Holcomb; the latter sometimes called Mrs. Whitley, the husband’s name by her second marriage. The complainant, Lollar, claims title under deeds made to him by the three children, heirs at law of Edmund I. - Adcock, deceased, namely William Adcock, Mrs. F. A. Miller, and Mrs. A. J. Whitley, formerly Mrs. A. J. Holcomb, and which said deeds were executed in January, 1907, a month or two before the institution of this suit. The respondent, complainant in the cross-bill, claims under a deed from K. E. Adcock, William Adcock, F. A. Miller, and A. J. Holcomb to' Benjamin M. Long, of date January 14, 1878, and from said Long through a connected chain of title to itself.

The deed to Long of January 14, 1878, is attacked by the complainant, and its validity as a deed contested *246 and. denied, upon tbe asserted ground that at the time of its execution it was signed in blank, not containing the name of the grantee, nor a dscription of the property conveyed; furthermore, that the grantors, heirs at law of E. I. Adcock, who signed the deed, are not named in the body of the deed as grantors, the description in the deed of the. grantors being Kessiah E. Adcock and her heirs, of Cullman county. It is also asserted by complainant that William Adcock did not in fact sign the deed, and that F. A. Miller, one of the grantors who signed the deed, was at the time a married woman, and that her husband did not join with her in its execution.

The deed in question was attested by two witnesses, and there was also an acknowledgment taken before one D. P. Vickery, a notary public and ex officio justice of the peace, and, though irregular, certifying that “K. E. Adcock and her heirs, whose name is signed in the foregoing conveyance and who is known to me, acknowledged,” etc. This deed was filed for registration in the office of the probate judge of Walker county on the 4th day of June, 1897. The deed, when offered in evidence in this case, was more than 30 years old; but the question of its admissibility in evidence as an ancient document is of -no importance, as1 its execution was duly proven by each of the attesting witnesses, who testified in the case. It may be said, however, in passing, that its great age and coming from the proper custody, without any mark of suspicion attaching to it, in connection with the fact that Long and those claiming under him had looked after the land and paid taxes on it, “acts referable to the title,” as was said in White, McLane & Morris v. Farris, 124 Ala. 461 , 27 South. 257 , was sufficient to admit the deed in evidence upon the doctrine of ancient documents, with further proof of actual pos *247 session by the Sloss Company or its predecessors in title under the deed.

The deed on its face is by Mrs. Adcock and “her heirs,” and it is contended that, as the parties signing it, other than Mrs. Adcock, are not named as grantors in the body, it is ineffectual to convey their title. While it is true that the body of the deed must show who are the grantors, the rule does not require the names of the grantors to be inserted in the body of the deed. The requirement of the rule is met if, from the deed in its entirety, enough is shown from which, by the aid of extrinsic evidence, the names of the grantors can be made certain. As was said in Madden v. Floyd, 69 Ala. 221 : “The description is sufficiently certain if the identity of the party can be worked out through a proper application of the maxim, ‘Id certum est quod certum reddi protest.’” To the same effect is Jones v. Morris, 61 Ala. 518 , wherein, quoting from Shaw v. Loud, 12 Mass. 447 , it is said: “A deed made to the heirs at law of a deceased person is good, because the persons who are to take can be ascertained by extrinsic testimony.” It is evident that the words ccher heirs’’ as used in the deed in the present case, meant her children — was intended to designate her children. The living have no heirs — “non hseres est viventis.” The children of Mrs. Adcock signed the deed with her, which of itself shows what was understood by all of them in the use of the words “her heirs” as employed in the body of the deed. Applying the principle laid down in the above-cited cases of Madden v. Floyd and Jones v. Morris, we have no hesitancy in upholding the deed against this attack on its validity.

Was the deed signed in blank? This is an issue of fact, in which the burden of proof rests upon the attacking party. The testimony here is in conflict. The *248 deed is regular on its face, and after the lapse of 80 years it comes within that class of instruments with reference to the execution and genuineness of which it was said, in Bernstein v. Humes, 75 Ala. 241 -244: “The dust of years has settled on the transactions brought in view in the testimony, and human memory is not infallible. Some of the witnesses must be mistaken; for they are in conflict. Be the true facts as they may, we hold that the rulings of the circuit court, in receiving the ancient deeds and copies in evidence are free from error.” In Wilson v. Holt, 83 Ala. 528 -540, 3 South. 321 , 327, 3 Am. St. Rep. 768 , a suit to establish an interest in land, dependent upon the validity of a decree of divorce rendered some 23 years before, when legislative sanction was required to render the decree of divorce effectual, there being no evidence in the case of such legislative sanction, it was said: “It will be presumed, therefore, in view of this great lapse of time, that the requisite sanction was given by the General Assembly to the decree of divorce granted by the chancery court. Almost any reason abe presumption of fact will be conclusively indulged, in order to sustain the rights asserted under a decree which is 20 years old.” —Wilson v. Holt, 83 Ala. 528 -540, 3 South. 321 , 3 Am. St. Rep. 768 ; Clemmons, et al. v. Cox, et al., 116 Ala. 567 -572, 23 South. 79 .

In 16 Cyc. p. 1075, the principle is thus stated: “Upon proof of a fact so ancient as to suggest inherent difficulty in proving preliminary or attendant facts, all circumstances necessary to its legal validity will be assumed to exist.” In a case like the one under consideration, after so great a lapse of time, in order to overcome the reasonable presumptions to be indulged in favor of the due execution and genuineness of the deed, the evidence should be clear, satisfactory, and convine- *249 ing. Such is not the state of the complainant’s evidence. Three of the principal actors participating in the transaction of the making of the deed, namely, Mrs. Adcock, one of the grantors and the mother of the other three Avliose names are signed as grantors, and who it is admitted negotiated the sale of the land, and B. M. Long, the named grantee in the deed, and D. P. Vickers, the justice of the peace who took the acknowledgment and in whose handwriting the writing of the body of the instrument is admitted to be, have long since been silenced in death. These three, if living, could no doubt by their testimony explain some things material, that are left wholly in inference by the testimony in the case. It is not our purpose here to undertake to discuss in detail the evidence of the several 'witnesses testifying in the case, as counsel have done in elaborate briefs, but only, after having carefully considered all of the evidence, to express our conclusions.

The three principal witnesses of the complainant to the transaction of the making of the deed, namely, William Adcock, Mrs. Miller, and Mrs. Holcomb, cannot be said to be free from the bias of interested parties, and how far this interest may have operated to influence their recollection of a transaction so long past no one can say. These witnesses themselves, in their testimony, are in conflict in some of the material particulars relating to the transaction. These three witnesses, however, all testify that the deed, when signed, was a blank deed. Opposed to this evidence is the testimony of Wilson and Oostlow, the two attesting witnesses to the deed. These two witnesses are wholly disinterested, and they each testify positively and unequivocally that the deed was not a blank deed when signed by the parties and attested by them, but was then just as it is now, excepting the marks of age upon it. The only dis *250 crepancy in the testimony of these two attesting witnesses as to the execution of the deed was in their recollection as to the name of the grantee in the deed. The recollection of one was that it was Benjamin Long, while the recollection of the other was that the name of the grantee was Bailey. This, from the evidence in the case, can be very easily accounted for. Bailey was the person with whom Mrs. Adcock negotiated the sale of the land, and to whom she executed her bond for title. Bailey failed to meet the deferred payment, and Long came to his aid, and the deed was made to Long as a security. There is evidence to warrant us in this conclusion. There is also evidence that there was talk of Long and Bailey in connection with the transaction of the making of the deed. In this way it can readily he seen how the recollection of a witness might he confused after the lapse of so long a time. But, he that as it may, they are each positive in their recollections that the deed was not signed in' blank, but was read over and signed by each of the parties whose names appear to it, in the presence of these witnesses, who then and there attested as witnesses. With this evidence, supported by the presumptions attaching to the execution of the deed after the lapse of 30 years, we are of the opinion that the complainant has not only failed to discharge the burden of proof, but that the preponderance and great weight of the evidence is against him and in ' favor of the validity of the deed. And this is true, not only as to the question of the deed’s being signed in blank, but also as to its execution by William Adcock, who denied that he signed the deed, at the same time admitting that he authorized his mother to sign his name to it.

It is not disputed that Mrs. F. A. Miller, at the time she signed the deed,- was a married woman, and that her *251 Inis band did not join with ber in its execution. On this it' is insisted that the deed did not convey the legal title to her interest, and, furthermore, that she is not estopped from asserting such legal title. We recognize the rule, under our decisions, that the doctrine of estop-pel does not operate against a married woman where she conveys her land without her husband’s joining with her in such conveyance in accordance with statutory requirement. But the facts in this case, we think, relieve it from the rule. The evidence to our minds conclusively shows that all the purchase money for the land was paid to Mrs. Adcock and her children, and that Mrs. Miller got a part of the purchase money before she was married. She was not only present when Bailey traded for the land from Mrs. Adcock, her mother, but the evidence shows she was willing and consented to the trade, and actually participated in the proceeds of the sale. She was then an unmarried woman and over 21 years old. Out of this conduct arose an equitable estoppel, and by it she clearly precluded herself from avoiding the sale; and her subsequent marriage would not save her from an estoppel already operative against her.

But, it is insisted that, even should it be held that the Adcock heirs had estopped themselves from attacking the sale to Bailey made in 1876, and consummated by the execution of the deed to B. M. Long of January 14, 1878, the complainant, Lollar, would not be estop-ped, for the reason, as stated in argument by counsel, that he was a subsequent purchaser for value, without notice of the participation in the purchase money by his grantors. Aside from consideration of the question as to whether an estoppel is operative against one’s' privies, -whether bona fide purchasers for value and without notice, or not, which was left an open question in *252 Lindsay v. Cooper, 94 Ala. 178 , 11 South. 325 , 16 L. R. A. 813, 33 Am. St. Rep. 105 , it is quite clear from the evidence in this case that the complainant was not a purchaser in good faith for value and without notice. His own testimony, as well as that of his grantors, shows that he approached them, not for the purpose of “buying the land,” but whatever “claim” they might have in the land; that he told them he “would rather buy the land straight from them at $20 per acre” than to pay them what he did for whatever claim they had; that, in approaching his grantors for deeds, he designated the land as having been formerly owned and sold by them, and told them that whatever he paid them for their claims would be just like that much picked up by them; that he paid them f 112.50 for their “claims,” and yet told them that he would rather pay them f6,400 and buy the land straight; that he procured the deeds, expecting to bring suit against the Sloss Company, that he knew at the time was claiming, to own the minerals in the land. On this evidence, it is hardly possible for an impartial mind to reach the conclusion that the complainant was a bona fide purchaser for value and without notice, and any estoppel arising out of the transaction with Bailey against the complainant hol-lar’s grantors must operate against him, for the evidence shows that he had positive knowledge of the transaction with Bailey.

We are of the opinion, and so hold, that the claim of the respondent, the Sloss-Sheffield Steel & Iron Company, both legal and equitable, in and to the mineral interests in question, is superior to that of the complainant Lollar.

The learned chancellor, upon the hearing of the cause, reached the conclusion, as stated by him in opinion, copied in the record, accompanying his decree, “that *253 the complainant was not, when the bill was filed, in the actual or constructive possession of the mineral interest in the land in controversy,” and thereupon rendered a decree dismissing the complainant’s bill, and, being further of the opinion that the cross-bill contained no independent equity, decreed a dismissal also of the cross-bill. We concur in the conclusion of the chancellor that the complainant was not, when the bill was filed, in the possession, actual or constructive, of the mineral interests in the land in controversy, but not in his decree dismissing the bill and the cross-bill. In this respect we think the chancellor was in error.

The bill is filed under the statute and contains all of the essential averments of a statutory bill. The statute prescribes what the answer of a defendant claiming an interest shall specify and set forth. The answer in the present case, pursuant to the statute, specifically sets forth the defendant’s title and claim, and the manner and the sources through which the same was derived or created. Section 5446 then, among other things, provides that the court shall, “upon such consideration and •determination, finally adjudge and decree whether the defendant has any right, title,” etc., “and what such right, title,” etc., “is,” and that “such decree is binding and conclusive upon all the parties to the suit.” Under the statute, the defendant, on its answer, apart from the cross-bill feature, having established its prior right or title, was entitled to have its title and claim determined and adjudged by the decree of the court. —Collier v. Alexander, 138 Ala. 245 , 36 South. 367 .

Recognizing the rule that an original bill to remove cloud from title, without actual possession of the land in the complainant, is wanting in equity and cannot be maintained, we are of the opinion that the rule does not extend to cross-bills in a statutory bill of the char *254 acter oí the one under consideration. Tbe same reasons do not exist for the application of the rule. Moreover, there is another general rule that, whenever a court of equity acquires jurisdiction for any purpose, it will assume jurisdiction for all purposes necessary to a final determination and full settlement of the controversy between the parties.

Here the complainant invited the respondent into court for the purpose of having their controversy determined and settled, and the title to the land quieted. The relief asked in the cross-bill was affirmative, and under our decisions, in a statutory bill of this character, in order to obtain such relief a cross-bill with appropriate averments was necessary. In O’Neal v. Prest wood, 153 Ala. 443 , 45 South. 251 , the precise question we have here is decided. The bill in that case was filed under the statute to quiet title, and the defendants made their answers cross-bills. In that case the land in controversy was, as found by the court, uninclosed, “in the nature of a common, in the outskirts of Andalusia, which on the record was in the actual possession of no one.” It was said by this court, speaking through McClellan, J.: “The issue, then, as respects the possession at the time the bills were filed, is one of title, which draws to it'the constructive possession of the real estate in question. In other words, title is the inquiry which, when determined will cast the cause.”

Such is the case we have before us, and in the cited case this court granted the identical relief prayed by the cross-bill in this case; that is, the court canceled the conveyances under which the complainants claimed as clouds upon the respondents’ title. That case, as an authority, is conclusive of this one on the immediate question under consideration.

*255 It follows, therefore, from all that has been said by us, that the decree of the chancellor must be reversed; and one will be here rendered adjudging that the respondent, the Sloss-Sheffield Steel & Iron Company, has the. superior claim and title over the complainant, in the mineral interest in the land in question; and it is further decreed that the deeds from William Adcock, F. A. Miller, and A. J. Holcomb, to the complainant,. Lollar, be • canceled as clouds upon the respondent’s title.

As the conclusion reached by us is a. final determination of the controversy between the parties, it becomes unnecessary to consider other questions in the case argued by counsel, and we therefore refrain from any discussion of them.

Reversed and rendered.

Anderson, Sayre, and Evans, JJ., concur.