Opinion
1 Div. 750.
May 11, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.
Stevens, McCorvey, McLeod, Goode Turner, of Mobile, and Hybart, Heard Chason, of Bay Minette, for appellant.
It was error to consider the affidavits offered by appellee. The notice to appellant and the motion to dissolve set out that same would be based upon the sworn answer of appellee, and thus restricted appellee to the ground or reasons therein set out. Holcomb v. Forsyth, 216 Ala. 492, 113 So. 516. The deed from Boyington to appellee, upon which appellee relies, is designated in the answer as a deed of bargain and sale. Being such, it was essential to its validity that a consideration be expressed. Houston v. Blackman, 66 Ala. 561, 41 Am. Rep. 756; 18 C. J. 177; Stewart v. Stewart, 171 Ala. 487, 54 So. 604; Code 1923, § 8034; Phillips v. Adams, 70 Ala. 373; Shannon v. Wisdom, 171 Ala. 413, 55 So. 102; Horton v. Wollner Co., 71 Ala. 457. The affidavit of Boyington shows that he signed the deed under a misapprehension, never intended to convey any property to the county, and that the county had never paid him anything by way of consideration for the deed. There is no evidence that Boyington delivered the deed to the county or to any third person with instructions to deliver it to the county. The prima facie presumption of delivery is overcome. Alexander v. Alexander, 71 Ala. 295; Goodlett v. Kelly, 74 Ala. 213. But conceding that the deed met the requirements of law, it is absolutely necessary that a delivery and acceptance of the deed should have been shown by some act on the part of the county. 29 Cyc. 1209; 8 R. C. L. 978; Napier v. Elliott, 146 Ala. 215, 40 So. 752, 119 Am. St. Rep. 17; Ellis v. Drake, 206 Ala. 145, 89 So. 388; Manfredo v. Manfredo, 191 Ala. 332, 68 So. 157. The fact that a deed or other writing is prepared and recorded purporting to dedicate certain property to a county or municipality is not sufficient within itself to constitute a dedication, the deed being but an offer to dedicate, and the grantee therein would not be bound by this offer until it had manifested by some unequivocal act its acceptance of such dedication. To constitute a dedication the owner must be shown to have knowingly intended to make same and this must be followed by an abandonment of his exclusive enjoyment. 18 C. J. 51, 74, 95, 96, 122; International R. Co. v. Cuneo, 47 Tex. Civ. App. 622, 108 S.W. 714; H. A. Hillmer Co. v. Behr, 264 Ill. 568, 106 N.E. 481; Chicago, M. St. P. R. Co. v. Chicago, 264 Ill. 24, 105 N.E. 702, Ann. Cas. 1917A, 1146; People v. Johnson, 237 Ill. 237, 86 N.E. 676; Mobile v. Fowler, 147 Ala. 406, 41 So. 468; Kirkland v. Tampa, 75 Fla. 271, 78 So. 17; Miami v. Fla. R. Co., 79 Fla. 539, 84 So. 726; Waggeman v. North Peoria, 155 Ill. 545, 40 N.E. 485; West End v. Eaves, 152 Ala. 334, 44 So. 588.
Beebe Hall, of Bay Minette, for appellee.
Upon hearing of a motion to dissolve an injunction, the court may consider the sworn answer and bill, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce. Code 1923, § 8302; Henry v. Watson, 109 Ala. 335, 19 So. 413; Rice v. Davidson, 206 Ala. 226, 89 So. 600; Profile C. M. Co. v. Calhoun W. Co., 189 Ala. 181, 66 So. 50. As between the parties to a deed no consideration is necessary, the only effect of the consideration clause being to estop the grantor from alleging that the deed was executed without consideration. Haslam v. Jordan, 104 Me. 49, 70 A. 1066; 18 R. C. L. 961; Houston v. Blackman, 66 Ala. 559, 41 Am. Rep. 756; London v. Anderson Brass Works, 197 Ala. 19, 72 So. 359; 18 C. J. 177, § 59; McDonnell v. McDonnell, 10 Cal.App. 63, 101 P. 40; Conway v. Rock, 139 Iowa, 162, 117 N.W. 273; Robertson v. Hefley, 55 Tex. Civ. App. 368, 118 S.W. 1159; Goad v. Moulton, 67 Cal. 536, 8 P. 63; Beal v. Warren, 68 Mass. (2 Gray) 447; Brandes v. Hastings, 163 Minn. 15, 203 N.W. 430. Where land is sold under warranty deed, a valuable consideration is presumed. Holloway v. Vincent, 143 Mo. App. 434, 128 S.W. 1009; Yates v. Burt, 161 Mo. App. 267, 143 S.W. 73. A sealed instrument imports a consideration. Golle v. State Bank, 52 Wn. 437, 100 P. 984; Davis v. Glendinning, 232 Ill. App. 583. If no consideration is expressed it may be shown by parol. 8 R. C. L. 969. Where a deed is in possession of the grantee, its delivery is presumed. The burden is upon the grantor to rebut the presumption of delivery. Carter v. McNeal, 86 Ark. 150, 110 S.W. 222; Zihn v. Zihn, 153 Cal. 405, 95 P. 868; Ward v. Conklin, 232 Ill. 553, 83 N.E. 1058; Ackman v. Potter, 239 Ill. 578, 88 N.E. 231; Riegel v. Riegel, 243 Ill. 626, 90 N.E. 1108; Napier v. Elliott, 177 Ala. 113, 58 So. 435; Skipper v. Holloway, 191 Ala. 190, 67 So. 991; Gulf R. C. Co. v. Crenshaw, 169 Ala. 606, 53 So. 812; Williams v. Armstrong, 130 Ala. 389, 30 So. 553; Fitzpatrick v. Brigman, 130 Ala. 450, 30 So. 500; Alexander v. Alexander, 71 Ala. 295; Elston v. Comer, 108 Ala. 76, 19 So. 324; Perkins v. Perkins, 206 Ala. 571, 91 So. 256. Acceptance of the deed by the County is presumed. Spencer v. Razor, 251 Ill. 278, 96 N.E. 300; Burkey v. Burkey (Mo. Sup.) 175 S.W. 623; Gulf R. C. Co. v. Crenshaw, supra; Graham v. Suddeth, 97 Ark. 283, 133 S.W. 1033; Wiley v. London Lancashire F. I. Co., 89 Conn. 35, 92 A. 678. To defeat a deed on grounds of fraud in its procurement, the fraud must be established by clear and convincing proof. Stewart v. Stewart, 171 Ala. 485, 54 So. 604, Ann. Cas. 1913A, 925; Dean v. Oliver, 131 Ala. 634, 30 So. 865; Nelson v. Brown, 164 Ala. 397, 51 So. 360, 137 Am. St. Rep. 61; Harris v. Bowles, 208 Ala. 545, 94 So. 757; Dent v. Long, 90 Ala. 172, 7 So. 640. Aside from any consideration of the deed as a valid conveyance of title, it is plainly a dedication of the land for a public road. No formality is necessary to such dedication. The intention to dedicate may be inferred from acts and conduct of the grantor. Bessemer L. I. Co. v. Jenkins, 111 Ala. 148, 18 So. 565, 56 Am. St. Rep. 26; Forney v. Calhoun County, 84 Ala. 220, 4 So. 153; Gage v. M. O. R. Co., 84 Ala. 224, 4 So. 415; Trammell v. Bradford, 198 Ala. 513, 73 So. 894; Harper v. State, 109 Ala. 66, 19 So. 901; Smith v. Dothan, 211 Ala. 338, 100 So. 501; Warren v. Sims, 204 Ala. 606, 86 So. 907; East Birmingham R. Co. v. Birmingham M. F. Co., 160 Ala. 461, 49 So. 448; Fort Payne Co. v. Fort Payne, 216 Ala. 679, 114 So. 63; Manning v. House, 211 Ala. 570, 100 So. 772; Burleson v. Hamilton, 213 Ala. 198, 104 So. 253; Birmingham v. Graham, 202 Ala. 202, 79 So. 574; Stollenwerck v. Greil, 205 Ala. 217, 87 So. 338; Stewart v. Conley, 122 Ala. 179, 27 So. 303; Myers v. Oceanside, 7 Cal.App. 87, 93 P. 686; Miller v. Commissioners, 125 Ill. App. 431; Shearer v. Reno, 36 Nev. 443, 136 P. 705.
This suit was for injunction against the county to prevent the opening of a public road through the pasture of the complainant.
The temporary injunction was dissolved after the sworn answer praying dissolution was filed and respective affidavits were offered in evidence, and hearing thereon.
The court rendered an opinion supporting the decree.
The questions raised are: (1) That appellee's affidavits offered in support of the sworn answer were not admissible; (2) that the deed from the common grantors — Alto Boyington and wife — to the county recited no consideration, and there was no delivery or acceptance to operate as a dedication.
The statute provides that a defendant may, in vacation, upon ten days' notice to the complainant, move to dissolve an injunction for want of equity (section 8302, Code); that upon the hearing of a motion to dissolve an injunction, the court may consider the sworn answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, "and also 'such affidavits as any party may introduce.' " Henry v. Watson, 109 Ala. 335, 19 So. 413; Rice v. Davidson, 206 Ala. 226, 89 So. 600; Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. 50; Holcomb v. Forsyth, 216 Ala. 486, 489, 113 So. 516.
The clause to be considered is:
"This deed made the 7th day of December, 1925, between Alto Boyington and Anna Belle Boyington, (husband and wife) (parties) of the first part, and Baldwin County, Alabama, (party) of the second part, witnesseth, That the parties of the first part, by these presents do grant, deliver unto the said party of the second part all that real property in Baldwin County, Alabama, described as follows, towit: [describing the strip or right of way 15 feet wide]. This strip of land is deeded to Baldwin Co., Alabama, for use as a public road and is not to be closed or obstructed.
"Together with all appurtenances thereunto belonging to have and to hold forever and against any person lawfully claiming the same, said parties of the first part shall ever warrant and defend.
"In witness whereof, the parties of the first part hereunto set hand and seal the day and year first above written."
This deed was duly acknowledged and recorded.
In Houston v. Blackman, 66 Ala. 559, 562, 41 Am. Rep. 756, Mr. Chief Justice Brickell observes that: "In deeds of bargain and sale, the expression of any, the slightest consideration, — for instance, a pepper-corn even, — will support them, as between the parties. The only use and operation of the expression of a consideration, or the introduction of a clause reciting a consideration, is to prevent a resulting trust to the grantor, and to estop him from denying the making and effect of the deed for the uses therein declared. — Belden v. Seymour, 8 Conn. 304 (21 Am. Dec. 661); Meeker v. Meeker, 16 Conn. 383; Grout v. Townsend, 2 Hill (N.Y.) 554; Goodspeed v. Fuller, 46 Me. 141 (71 Am. Dec. 572); Souverbye v. Arden, 1 Johns. Ch. 240; Graves v. Graves, 29 N.H. [9 Foster] 129." London v. G. L. Anderson Brass Works, 197 Ala. 17, 19, 72 So. 359; Holcomb v. Forsyth, supra; 18 C. J. 177.
Dedication and acceptance within a reasonable time of a public highway must be clearly manifested by the act or acts of the owner and public. Harper v. State, 109 Ala. 66, 69, 19 So. 901. It is further declared by this court that where a deed is in the possession of the grantee the presumption (or prima facie) is that of delivery (Napier v. Elliott, 177 Ala. 113, 58 So. 435; Skipper v. Holloway, 191 Ala. 190, 67 So. 991); and the test of delivery of a conveyance is whether the grantor intended to reserve to himself the locus peonitentiae. If he did, there is no delivery and no present intention to divest himself of the title to the property. Griswold v. Griswold, 148 Ala. 239, 241, 42 So. 554, 121 Am. St. Rep. 64; Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 613, 53 So. 812; Powell v. Powell, 217 Ala. 287, 116 So. 139; Dawson v. J. A. Lindsey Co., 223 Ala. 169, 171, 134 So. 662. That is, though delivery may be by the grantor handing the conveyance to the grantee, this is not necessary to a valid delivery, and, when "the grantor's acts or words, or both, clearly manifest an intended delivery of the deed, the courts will give effect to the intent and declare the deed delivered." Perkins v. Perkins, 206 Ala. 571, 91 So. 256, 257.
It is further declared that to defeat a deed on the grounds of fraud in its procurement, the fraud must be established by clear and convincing proof. Stewart v. Stewart, 171 Ala. 485, 54 So. 604; Dean, Adm'r, v. Oliver, 131 Ala. 634, 30 So. 865.
The record fails to disclose that the grantors were unable or prevented from reading and understanding the effect of the instrument in question, or from understanding the nature and consequence of the act. Harris v. Bowles, 208 Ala. 545, 94 So. 757.
The question of dedication by act or acts, either verbally or in writing, and its acceptance, of a public highway, has been the subject of frequent consideration. Fort Payne Co. v. City of Fort Payne, 216 Ala. 679, 114 So. 63; City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574; Stollenwerck v. Greil, 205 Ala. 217, 87 So. 338; Bessemer Land Improvement Co. v. Jenkins, 111 Ala. 135, 148, 18 So. 565, 56 Am. St. Rep. 26; Forney v. Calhoun County, 84 Ala. 215, 220, 4 So. 153; Steele v. Sullivan, 70 Ala. 589; Gage Co. v. Mobile Ohio R. R. Co., 84 Ala. 224, 4 So. 415; Trammell v. Bradford, 198 Ala. 513, 73 So. 894; East Birmingham Realty Co. v. Birmingham Machine Foundry Co., 160 Ala. 461, 49 So. 448.
Appellant and appellee claim from a common source; the former by deed of January 17, 1927, and the latter by deed of December 7, 1925, which was duly recorded on November 16, 1926. Thus appellant had constructive notice of the county's right and title. It is shown the road was constructed to the north boundary of the tract or right of way in dispute; this was evidence of the county's intention to maintain and construct that highway over the disputed strip or way and put the subsequent purchaser on notice when he later purchased from the common source of title.
The evidence fails to support appellant's insistences that the conveyance was obtained by fraud, was not supported by sufficient consideration, was not dedicated and accepted by the county, and that he was a bona fide purchaser for value without notice from Boyington. We concur with the circuit judge in his finding, and his ruling was without error.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.