# Atlanta Nat. Building & Loan Ass'n v. Gilmer

> U.S. Circuit Court for the District of Middle Alabama · January 22, 1904 · 128 F. 293

URL: https://www.frixlaw.com/law-library/cases/9302842

## Case

- **Full name:** ATLANTA NAT. BUILDING & LOAN ASS'N v. GILMER
- **Court:** U.S. Circuit Court for the District of Middle Alabama
- **Decided:** January 22, 1904
- **Citations:** 128 F. 293; 1904 U.S. App. LEXIS 4678
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Sheery
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9302842

## Opinion text

*297 On Rehearing.
Since the foregoing opinion was written, the solicitors for the defendants, with leave of the court, have filed additional briefs. I have carefully examined the new authorities which have been cited, and have not found any good reason for disturbing the conclusion to which I had • come.
i. It has been again urged on the attention of the court that the possession of Mrs. Gilmer was sufficient to put the complainants on notice. The case of Watson v. Murray, 54 Ark. 499 , 16 S. W. 293 , is cited as sustaining that contention. It is true that it appears in that case that the mother and the son occupied the house on the real estate in question, with the legal title in the son, and that it was held, under the circumstances of the case, that the possession of the mother was notice of her equitable interest to the vendee of the son. The facts, however, of the case, as showing the character of the mother’s possession, are very different from the facts in the case at bar. The son was a minor, living with his mother, she being the head of the family. The court found that there was “not a circumstance to indicate that she or her neighbors regarded her occupancy of the'premises as being by the permission or sufferance” of her son. “She was the head of the family, and no one could reasonably have ascribed the actual possession of the property to her minor son, rather than to herself.” It does not appear that the son had been emancipated from her control. On the contrary, the, court said that “he was a minor, living with his mother, and that she was entitled to all of his earnings.” The solicitors for the complainants call attention to the fact that his disabilities as a minor had been removed. But an examination of the case shows that when he was about 16 years of age, upon the application of his mother, “the disability imposed by his minority was so far removed as to enable him to execute a deed” to a purchaser of certain real estate not involved in the suit, the title to which was in him at that time. After that he lived with his mother as a member of her family, and under such circumstances that she was legally entitled to his earnings. It was a case in which the mother alone was in possession. The court observed that, if her possession was not in the “strictest sense exclusive,” it was sufficiently marked and ostensible to put Murray upon inquiry, and to charge him with notice of her equitable estate. We do not think the court in that case intended to depart from the well-settled doctrine that, where the actual possession of the real estate is joint, and one of the joint possessors is vested with the legal title, the possession is considered that of the one who has the title. As I understand the opinion, the court has only decided in that case that the actual possession was in the mother, and not in the son. In the case at bar the evidence, I think, shows that at the date of the mortgage the property was in the possession of the mortgagors. And therefore Mrs. Gilmer’s occupancy of a room in the house was not inconsistent with the title of the mortgagors, they being in actual possession, and using the house as a boarding house.
Much has been said in the briefs about the relationship that existed between the occupants of the house. In Rankin v. Coar, 46 N. J. Eq. 566, 22 Atl. 177 , 11 L. R. A. 661—a case in many of its features very *298 much like the one at bar — it is shown that the relationship of the occupants of the house, instead of having a tendency to excite inquiry on the part of the mortgagee, would have directly the contrary effect. The court -said:
• “The- true rule is that, when the occupation by one is not exclusive, but in connection with another, with respect to whom there exists a relationship sufficient to account for the"situation, and the circumstances do not suggest an inconsistent claim, then such a possession will not give notice of a right by unrecorded grant. It will be neither open, notorious, nor unequivocal.”
2. -The position is also taken that the complainant, as mortgagee, cannot be an innocent purchaser without notice, because the mortgagors held under a tax title. Many authorities are cited bearing on questions relating to the infirmities of tax titles. Consideration of these questions, however, is excluded by the agreement upon which the case is submitted for decision. It is agreed that the property wa$ sold by regular proceedings which carried the title: As I understand the sixth section of the agreement upon which the case is submitted, it shows that the legal title was in the mortgagors at the time they executed the mortgage, and that there was no infirmity in the' proceedings by which the property was sold for city taxes. If the mortgagee had examined the record before accepting the mortgage, it would have found that the legal title was in the mortgagors.
3. I cannot concur in the contention of the learned solicitors for the complainants that “a purchaser from one holding under a tax deed cannot become a bona fide purchaser for value without notice.” If the proceedings-are regular, so that the deed carries the legal title (ánd that is the agreement here), it is entitled to as much consideration as any other conveyance of title. In Hefner v. Northwestern Life Ins. Co., 123 U. S. 747, 751 , 8 Sup. Ct. 337, 31 L. Ed. 309 , the court said:
“If a tax deed is valid, then from the time of its delivery it clothes the purchaser not merely with the title of the person who had been assessed for the taxes and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes.all prior titles and incumbrances of private persons, and all equities arising out of them.”
' A decree will be entered for the complainants as directed in the former opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9302842. Public record. Not legal advice.