Bank of Hartford v. Buffalow
Decision Date | 24 May 1928 |
Docket Number | 4 Div. 348 |
Parties | BANK OF HARTFORD v. BUFFALOW. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Bill in equity by P.A. Buffalow against Leeland Buffalow and the Bank of Hartford. From a decree overruling its demurrer to the bill, the Bank appeals. Affirmed.
A.A Smith, of Hartford, for appellant.
E.C Boswell, of Geneva, for appellee.
The bill is to cancel a deed to lands made in consideration that the grantee should support and maintain the grantor during life, and to further cancel a mortgage thereafter executed by the grantee. The Bank of Hartford, the mortgagee, demurred to the bill. From a decree overruling the demurrer, this appeal is taken.
In the granting clause of the deed, following a description of the property, are these provisions:
The habendum clause reads:
"To have and to hold the above-described property with the conditions stated above to the said Leeland Buffalow, his heirs and assigns, in fee simple."
Then follows full covenants of warranty.
The conveyance was executed in 1920, prior to the adoption of section 8046, Code of 1923, declaring such conveyances voidable at the option of the grantor by proceedings in equity.
The property right vested in the grantee by the conveyance as of its date is in no way affected by this statute. The same protection inures to any one holding under him, whether acquiring their title or interest before or since the adoption of the statute. Hyman v. Langston, 213 Ala. 685, 105 So. 889; Cox v. Hutto, 216 Ala. 232, 113 So. 41.
But the bill is not framed under the statute. It avers that:
The grantee "has wholly failed to support and maintain" the grantor, "has failed to furnish her a home, and has failed and refused to allow her to enjoy and participate in the comforts of said home, and that she (complainant) has been forced to leave the home of respondent, Leeland Buffalow, and seek support and maintenance elsewhere."
Appellant, in argument, presents two contentions in favor of the validity of the mortgage: First, that the deed passes a title in fee simple, and the provision forbidding the grantee to "sell or dispose" of the property without the grantor's joining therein is void as a restraint upon alienation; second, that the grantor's reserved rights can be no more than a condition subsequent, to be strictly construed; and so construed the clause forbidding the grantee to "sell or dispose of" does not forbid the giving of a mortgage. Appellant's contentions cannot be sustained.
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In re Health Science Products, Inc., Bankruptcy No. 94-03938-BGC-11. Adv. No. 94-00294.
...including a mortgagee, has notice of what appears in the chain of title of his grantor or mortgagor." Bank of Hartford v. Buffalow, 217 Ala. 583, 584, 117 So. 183, 185 (1928). Since SCDC did not qualify as a bona fide mortgagee under the Recording Act, NAAC, as assignee of SCDC, likewise is......
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