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

McCLELLAN, J.

-The action is statutory ejectment to recover the mineral interest only, instituted by appellees against appellant.

The common source of title asserted, respectively, was James I. Laird. In 1871 he conveyed, plaintiffs claim, the entire interest in the land described in the complaint to Micheál Taff. Taff moved on the land and there died in 1874. It not appearing that Taff’s estate was insolvent, allowing the presumption of its solvency, under the statutes then in force (Acts 1872-73, pp. 64-69), this tract must be “held, considered, and treated as a part of the real estate of the decedent without reference to this act.” Accordingly the title vested in the heirs (children) of M. Taff, subject to the widow’s (Susan Taff’s) rights as such, and the right, *388 under the statute cited, to retain possession, along with the children of the household, until the solvency of the estate was determined. Dower does not appear to have ever been assigned to the widow; nor does it appear that the financial status of the estate was ever judicially ascertained. In consequence, the assumption being that title passed under the deed to M. Taff, the widow’s right to possession throughout the long-period since 1874, through 1899, is apparent; and such possession, in the absence of proof to the contrary, was in subordination, not hostile or adverse, to the title vested in the heirs upon M. Taff’s decease. — Robinson v. Allison, 97 Ala. 596 , 12 South. 382 , 604.

Pending this- possession, the widoAv received, for a recited valuable consideration, a conveyance from James I. Laird of the surface interest only in this land; the mineral being reserved in the instrument.

The deed of 1871 to M. Taff Avas recorded in 1908. That of 1881 to the widow Avas recorded in 1902. Defendant (appellant) bought the mineral in the land from Rucker and others November 3, 1899. The defendant invoked on the trial the protection accorded purchasers for value, and without notice, against unrecorded instimments and equities. That doctrine is again pressed here.

It is insisted for defendant (appellant) that no such possession existed, at the time of the purchase, as laid upon the defendant the duty of inquiry; but, if so, the obseiwance of that duty of inquiry would not have availed to discover the existence of the unrecorded deed from Laird to M. Taff.

The possession of land essential to give rise to that duty of inquiry on the part of a purchaser need not be such an adverse possession as, if maintained for the necessary period, Avould ripen into title. — Smith v. *389 Jackson, 76 Ill. 254 . It is 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 unequivo cal. — O’Neal v. Prestwood, 153 Ala. 443, 449, 450 , 45 South. 251 ; Simmons Greek 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. — Knox v. Thompson, 1 Litt. (Ky.) 351, 13 Am. Dec. 246 ; Lyman v. Russell, 45 Ill. 281 ; Roussain v. Norton, 53 Minn. 560 , 55 N. W. 747 . It is the fact of the possession being “out of the vendor and held by another” that inspires the duty of inquiry imposed by laAV on the intending purchaser. — Powell v. Allred, 11 Ala. 318 ; Strickland v. Nance, 19 Ala. 233 ; Tutwiler v. Montgomery, 73 Ala. 263, 268, 269 (see, for qualification of this decision on the particular point there noted, Griffin v. Hall, 129 Ala. 289 , 29 South. 783 ) ; McCarthy v. Nicrosi, 72 Ala. 332 , 47 Am. Rep. 418 ; Brunson v. Brooks, 68 Ala. 348 .

With respect to the matter of actual possession, Mr. Perldns, the land agent of the appellant in 1899 and subsequently, testified: “The first time I Avas on the land Avas in 1899, prior to the execution of this deed [to the appellant, Ave interpolate]. There was no one living on the land at that time. I found a small portion of the land that looked like it had been grown in grain of some kind, oats or wheat; but I don’t think there Avas anything else in cultivation. Possibly some of it was used for a pasture, about six or seven acres. The land Avas in woods, except a small portion of it *390 had been cleared and grown up again. The land lying out had become badly washed. There were no buildings on it. There had been a house on it; but was not there at that time. * * I did not say there was growing crop on the land; I said the stubble was there, The land did not look as if it had been cultivated. I said it looked like it had had a crop of grain on it, and the stubble was still there. That was after the execution of the deed. * * * I was first on this land in 1899, about the last of July, or between the 1st of July and the last of August, and again between that time and the 1st of November. * * * The land looked as if something had been sown on it that year, and had been cut off; it had the appearance of having been cut off that year.”

No possession of the defendant’s vendors being-shown, there is no room for doubt, we think, that the stated duty of inquiry arose. If this duty had been, with reasonable diligence, pursued, would it have led to the discovery of the rights flowing from the unrecorded deed to M. Taff from Laird?

In Hodges v. Winston, 94 Ala. 576, 580 , 10 South. 535 , 537, it. is said “that possession is notice to a subsequent purchaser only of the right or title in or by which the possession is held.” This is the more modern doctrine prevailing here. At an earlier period the rule, in this respect, seems to have been otherwise. — Powell v. Allred, 11 Ala. 318 ; Strickland v. Nance, 19 Ala. 233 ; Tutwiler v. Montgomery, 73 Ala. 263, 268, 269. Notwithstanding the earlier view, we feel bound to now accept the stated doctrine, in the particular quoted, of Hodges v. Winston, supra. No inquiry by the defendant appears to have been made, otherwise than through the inspection of the records, which showed an unbroken chain of title to the mineral from Laird to defend *391 ant’s grantors, and the tax assessment records back to 1890, from which no condition of title, or right, or claim, to the mineral, adverse to that of defendant’s grantors, appeared.

There can be no questioning the fact that a widow, though occupying lands out of which she is entitled to have dower assigned or homestead set apart, may ‘assert an adverse claim against the owner of the interest in excess of her dower.” or homestead rights. — Rob inson v. Allison, 97 Ala. 496 , 601, 12 South. 382 , 604. Nor can there be any doubt that possession of land in which mineral lies may exist and be exercised of the mineral as distinct from the surface, or of the surface as distinct from the mineral. — Hooper v. Bankhead, 171 Ala. 626 , 54 South. 549 ; L. & N. R. R. Co. v. Massey, 136 Ala. 156 , 33 South. 896 , 96 Am. St. Rep. 17 .

Under the evidence in this record, heeding the quoted doctrine of Hodges v. Winston, supra, with respect to the reference of the effect of the notice to the right or title or claim under which that possession is held, the opinion is. entertained that it ivas a question for the jury whether Susan Taff’s possession was of entire interest in the land as widow, or whether her possession was of the surface only, and that under claim attributed alone to the Laird deed to Susan Taff, of December 16, 1881. There is no occasion to rehearse the testimony tending to support a finding either way. And if the finding of the jury was that the possession was the possession so held, at the time of the purchase by defendant, was not notice of the unrecorded deed to M. Tail, nor of the rights or titles consequent upon that deed. The court, in its oral charge, took this view, and, in consequence, submitted those inquiries for the jury’s determination.

*392 Charge 1, given at the instance of plaintiffs, asserted, when abstractly considered, a sound legal proposition. When referred to the issues indicated, it may have been, at most, calculated to mislead the jury. If so, the defendant’s remedy to avoid that effect was to ask explanatory instructions. The like observation may be made with respect to charge 2, given for plaintiffs.

Exception was taken to this portion of the oral charge of the court: “You can judge for yourself, using your own experience in life, whether or not she claimed under these deeds.” Under the authority of Sloss-Sheffield Steel & Iron Co. v. Hutchison, 144 Ala. 221 , 40 South. 114 , treating charge 4 there refused to defendant, error infected the quoted extract from the oral charge, in that the experience allowed to be invoked by the jury was not limited to the experience common to men in their station.

According to the view prevailing in the Hodges-Winston Appeal, 94 Ala. 576 , 10 South. 535 , Susan Taff’s possession could not, for the purpose of affording constructive notice to purchasers, be referred to both her right of possession as widoiv and to that claimed under the deed of 1881, provided, of course, she claimed possession under the latter instrument. The latter instrument appears to have been the product of an independent transaction, and, if availed of to support a claim to possession thereunder, was inconsistent with the rights of the widow, as such, to the surface of the land. In consequence, the court erred in advising the jury that the possession might have been referred to both deeds. Furthermore, if she, in fact, claimed under the deed of 1881, purporting to convey the surface only, it follows necessarily that such possession did not comprehend the mineral; and, in further consequence, if her possession was so restricted to the surface, there *393 was in fact no possession of the mineral wherefrom to impute constructively notice to the defendant of the rights attending the conveyance to M. Taff. The court therefore erred in refusing charge 23, requested by defendant. Charge 3, given for defendant, is not a substantial duplicate of charge 23, erroneously refused, as stated.

No relevancy of the proffered testimony with respect to the repute and notoriety of the. asserted fact that Susan Taff claimed the surface only of the half-quarter section described in the complaint appears. Such evidence is held admissible in cases where adverse possession is an issue; and so upon the ground that it may afford the basis for an implication of notice to the true owner. To this effect is Henry v. Brown, 143 Ala. 458 , 39 South. 325 , among others.

Chief Justice Dowdell and Justices Simpson, Anderson, Mayfield, and Sayre, are of the opinion that the court did not err in the particulars which the writer points out. They hold that there is no error in the record, and accordingly the judgment is affirmed. It is their opinion that proper inquiry would have discovered the existence of- the unrecorded deed to M. Taff; and that the widow’s, or her agent’s possession, even under the deed of 1881, was not inconsistent with a possession under the deed of 1871 to M. Taff. They further hold that the stated doctrine of Hodges v. Winston, supra, is not applicable in this case; and so for the reason that the 40 acres held by Winston was a distinct subject of possession from the other lands involved in that contest.

The judgment is affirmed.

Dowdell, C. J., and Simpson, Anderson, Mayfield, and Sayre, JJ.,- concur. McClellan and Somerville, JJ., dissent.