The bill in this cause was filed under section 809 et seq. of the Code.
It avers that complainant has been for the past several years in the peaceable possession of the mineral interest in a certain eighty acres of land described, claiming to own the same, and that respondent claims, or is reputed to claim, some interest in the land or to hold some lien or incumbrance thereon and no suit is pending to enforce or test the validity of such title, claim or incumbrance, etc. It is not averred that complainant is the owner of the mineral interest which she claims to own. Objection was taken to the bill, by demurrer, on this ground, but the demurrer seems to have been abandoned. It was not submitted to the chancellor and therefore not passed upon by him.
Assuming this to be a defect in the bill, it is a mere irregularity and was waived by an abandonment of the demurrer. While § 810 requires the bill to allege “ownership” of the land by the complainant, this is a matter of pleading and is not a necessary allegation in order to bring into exercise the jurisdiction of the court which is conferred by the preceding section. And where “ownership” is averred the complainant is not put to proof of that fact by documentary evidence of title, but makes out a prima facie case by proof of possession, so as to cast upon the defendant the onus of showing his claim or right to the land. Indeed, under the statutes, the court is not required to ascertain the strength or validity of the complainant’s title, but is required only to determine “Whether the defendant has any right, title or interest in or incumbrance upon such lands or any part thereof, and what such right, title, interest or incumbrance is, and in and upon what part of the lands the same exists.” —§ 812.
*601When the complainant, as here, showed by evidence peaceable possession by her of- the land as alleged, and that there was no suit pending at the time of the filing of the bill to test the defendant’s claim of title, this made a prima fade case and she was entitled to a decree ad-judging defendant’s claim invalid unless he established a good title. And if, under the evidence, he acquired no title by his deed under which he asserts his rights or claim to the mineral interest in this land, the question whether complainant has a superior title to defendant’s asserted claim to the mineral interest or any title at all is not in the case.
Does the evidence satisfactorily show that Killian, one of the defendant’s grantors, perpetrated a fraud in procuring Adkins, the original owner of the mineral interest in the land and from whom .complainant’s grantors acquired the right to its possession, to execute the deed to himself and Nixon?- And is respondent chargeable with notice of that fraud as a -purchaser from them? If both of these questions are answered in the- affirmative, then the defendant’s claim is invalid and the decree appealed from must be affirmed irrespective of the question whether Adkins’ deed to .complainant’s grantors was void for uncertainty or because not executed in conformity to the statutes regulating the execution of conveyances.
On the other hand, if the latter of these questions is answered in the negative, then, as we shall show, the complainant is entitled only to have the respondent’s claim or right to one-half interest in the land declared invalid.
The evidence, we think, satisfactorily establishes the fact that Killian, who was acting for himself and Nixon, induced Adkins to sign the deed conveying to them a fee simple title to the lands by means of fraudulent representations. It can scarcely be doubted that Nixon was bound by the acts and statements of Killian on that occasion. He was acting as Nixon’s agent- in that particular transaction and Nixon must be h-e-ld to have had notice of the deception practiced in procuring the execution of the deed.
Kendrick, the respondent, who acquired his right of claim to the land from Killian and Nixon, shows that he paid value for it. This fact being shown, the burden of *602proof was then shifted .to the complainant to show that he had notice of the fraud. This, we think, the evidence fails, to do. Neither Nixon or Killian are shown to have been his agents in the transactions in which this deed from Adkins was obtained. He, however, admits that, while he acquired the title from both Nixon and Killian, Nixon still has a half interest in the property. As to this half interest the complainant is entitled to a decree adjudging that the respondent has no title. Nor can the conclusion be otherwise upon the theory that the respondent had notice of complainant’s equity, either by virtue of Killian’s and Nixon’s actual knowledge of it, or on account of the asserted possession of the land by Mrs. Colyar.
Respondent is not chargeable with the notice that his grantors had, in the absence of evidence tracing to him a knowledge of some fact calculated to put him upon inquiry. A purchaser for a valuable consideration without notice of his grantor. — Martines v. Lindsey, 91 Ala. 334. Nor is he chargeable with notice because of the relation of joint tenants or tenants in common with Nixon. — 21 Am. & Eng. Ency. Law (2nd ed.), 587.
Ii is not insisted that Adkins’ deed to the complainant’s grantors was a conveyance. If such an insistence were made it would be untenable. It was not attested or acknowledged as required by the statutes, in that the grantor signed by mark and the attesting witnesses’ names were each by mark. — § 814 of Code. At best it wag nothing more than an agreement to convey, (Sparks v. Woodstock I. & S. Co,, 87 Ala. 294) which under the recording statutes was not required to be recorded, and the fact that it was did not operate as constructive notice to any one.
Complainant’s possession of the land was not such as to operate as notice to purchasers from Adkins. Adkins was in the possession of the land and had the legal title to i.t. He was living on it and his possession was entirely consistent with his apparent or record title. In the absence of notice to the contrary, a purchaser from him or from his grantee had the right to presume under the circumstances shown by the'evidence that his possession *603was rightful and exclusive. — McCarthy v. Nicrosi, 72 Ala. 334; 23 Am. & Eng. Ency. Law (2nd ed.), 506.
It is scarcely necessary to sav that the correction of the execution of the deed by Adkins, subsequent to respondent’s acquisition of the title, cannot affect the latter’s rights.
The decree appealed from must be modified so as to adjudge the respondent’s title to an undivided half interest in the mineral rights in the land to be valid.
Modified and affirmed.
McClellan, C. J., Simpson and- Anderson, J.J., concurring.