have been made to him. But the year in which this deed was executed, whether in 1870, 1871, or 1872, is not definitely shown. With the existence of the deed conceded, having shown that there was nothing upon the record to put the complainant upon notice of it, it becomes necessary to determine whether there was anything in the possession claimed under it to put the complainant upon notice. When this complainant negotiated and paid for and received his deed to the sixsevenths interest in these lands, his grantor was in possession under a complete recorded chain of title claiming to own that interest. Neither the respondent nor anyone under whom it claims to have derived title was in the open, visible, exclusive and unambiguous possession of the lands, which is essential in order for possession to operate as notice of the unrecorded deed. To go back of the purchase by complainant, when Proctor purchased these lands, no one was in the actual possession of them, nor had anyone who claimed to own them had the actual, open, exclusive and continuous possession of them for several years prior thereto, notwithstanding there were, when Baggett's tenant left them in 1879, dwelling-houses upon them and a part of the tract was tillable. is nothing in the fact of possession to have put the complainant on notice of the unrecorded deed, or to have even excited suspicion that his grantor did not have title to the interest he claimed to own: Wells v. American Mortgage Co., 109 Ala. 446, 20 South. 136; McCarthy v. Nicrosi, 72 Ala. 332, 47 Am. Rep. 418; Watt v. Parsons, 73 Ala. 202; Motley v. Jones, 98 Ala. 443, 13 South. 782; Griffin v. Hall, 129 Ala. 289, 29 South. 783; Wade on Notice, sec. 296. So, then, there There is much contention in brief that complainant had notice of respondent's claim because Wilson, one of his attorneys in this case, knew it. There are two reasons why this contention cannot prevail: 1. It appears that Wilson acquired his knowledge while representing Bowden or Proctor and before he was employed 608 by complainant to purchase these lands for him; 2. The evidence shows that Wilson represented the sellers of these lands also, and was personally interested in making the sale of them to complainant. He was really the seller, and got all of the purchase money that was paid by complainant. He was, therefore, really acting for himself, in his own interest, and adversely to that of his principal, the complainant, without any knowledge on the part of the latter of his dual relation: Pepper v. George, 51 Ala. 190; Frenkel v. Hudson, 82 Ala. 158, 60 Am. Rep. 736, 2 South. 758, 1 Am. & Eng. Ency. of Law, 1145, 1149, 1150, and note 1 on page 1150. It is insisted that the possession of John C. Wiggins and Baggett was adverse, and that it continued for a sufficient length of time to ripen into title, and that, therefore, respondent has a title to the six-sevenths interest in the lands claimed by it, independent of the unrecorded deed. It is entirely clear to us that the evidence is insufficient to sustain this contention to overcome the presumption that John C. Wiggins was holding for himself and cotenants: Jackson v. Elliott, 100 Ala. 669, 13 South. 690; Johns v. Johns, 93 Ala. 239, 9 South. 419. Indeed, just how John C. Wiggins' possession could be adverse to the five-sevenths interest which he claims to have derived under the lost deed, which we have shown, if made, is ineffectual to pass title as against this complainant, and not adverse to the cotenant whose interest the complainant acquired, we are quite unable to understand. For the reason, that the theory of this contention is necessarily predicated upon the actual and exclusive possession by Wiggins of the lands. Certainly, if it was exclusive so as to ripen into title by adverse possession as to the five-sevenths which the respondent claims that it acquired title to by adverse possession, upon the same principle it would have acquired the other one-seventh interest which it is conceded is owned by the complainant, it not being shown that the heir who owned that one-seventh interest was in possession at the time that it is claimed that John C.'s possession was adverse. 609 The remaining point necessary to be noticed is the one that Emma Wiggins, if there be in existence such a person, should have been made a party respondent to the bill. This contention is based solely upon the difference in the recital of the names of the minor heirs of Stephen L. Wiggins in the act of the general assembly approved December 9, 1896, authorizing them to sell their one-seventh interest in these lands, and the recital of the names of the children and sole heirs of Stephen L. in a deed executed by them to Bowden on the eighteenth day of January, 1897. If we should hold the recitals in this legislative act to be evidence of the facts stated therein, we could not allow it to overcome the recital in the deed that the persons therein named were at the date of its execution the "only children and sole heirs of Stephen L. Wiggins, deceased," in the absence of other evidence upon this point, and especially in face of the admission made by the pleadings, etc., in the cause. There is no error in the record and the decree appealed from must be affirmed. An Unrecorded Deed is ineffectual against subsequent creditors and purchasers without notice: Stevens v. Brown, 3 Vt. 420, 23 Am. Dec. 215; Price v. Wall, 97 Va. 334, 75 Am. St. Rep. 788, 33 S. E. 599; White v. McGregor, 92 Tex. 556, 71 Am. St. Rep. 875, 50 S. W. 564; Pyles v. Brown, 189 Pa. St. 164, 69 Am. St. Rep. 794, 42 Atl. 11. It is good, however, between the parties and as to those having notice thereof, either actual or constructive: Doran v. Dazey, 5 N. Dak. 167, 57 Am. St. Rep. 550, 54 N. W. 1023; Lake v. Hancock, 38 Fla. 53, 56 Am. St. Rep. 159, 20 South. 811. Possession of a definite tract by one holding`under a valid title is constructive notice of whatever interest he may hold: Mullins v. Butte Hardware Co., 25 Mont. 525, 87 Am. St. Rep. 430, 65 Pac. 1004. The Possession of Tenant in Common is prima facie not adverse to his cotenants: Alexander v. Gibbon, 118 N. C. 796, 24 S. E. 748, 54 Am. St. Rep. 757, and cases cited in the cross-reference note thereto; Clark v. Parsons, 69 N. H. 147, 76 Am. St. Rep. 157, 39 Atl. 898. But his grantee may hold adversely to them: Sudduth v. Sumeral, 61 S. C. 276, 85 Am. St. Rep. 883, 39 S. E. 534. INDEX. ABANDONMENT OF CHILD. See Homicide, 1. Abortion, unintentional killing in an attempt to produce, 578. ABUSE OF PROCESS. ACKNOWLEDGMENTS. See Executions, 7, 8. ADMIRALTY. See Shipping; Vessels. ADULTERATION. 1. CONSTITUTIONAL LAW-Pure Food Laws.-The legislature 2. PURE FOOD LAWS-Interpretation.-A statute to provide ADVERSE POSSESSION. ADVERSE POSSESSION by Purchaser of land under defective ALIMONY. See Divorce. |