Carr v. Moore

• Decision Date: 15 May 1919
• Docket Number: 5 Div. 724
• Citation: 82 So. 473,203 Ala. 223
• Parties: CARR et al. v. MOORE et al.
• Court: Alabama Supreme Court

82 So. 473

203 Ala. 223

CARR et al. v. MOORE et al.

5 Div. 724

Supreme Court of Alabama

May 15, 1919

Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.

Bill by Claude L. Moore and others against Mrs. J.A. Carr and others. Decree for complainants, and respondents appeal. Affirmed.

p>Page James W. Strother, of Dadeville, for appellants.

Bulger & Rylance, of Dadeville, for appellees.

THOMAS J.

The bill was to clear title to lands. Code 1907, § 5443 et seq.; Gill v. More, 76 So. 453, 459. The issue was of fact as to the ownership thereof and whether the owners were in its peaceable possession when the bill was filed.

The parties to the record claim title from a common source--through mortgages from H.F. Cotton and wife. The source of complainants' title was a mortgage given by the Cottons to John W. Thornton, executed and acknowledged on February 21, 1908, and duly filed for record January 19 1909, which mortgage was foreclosed on January 23, 1917. The purchaser was one of the complainants, Claude L. Moore, to whom the mortgagees, John W. Thornton and wife, made the deed on January 23, 1917. Thereafter (October 29, 1917) said Moore conveyed a two-thirds interest in the land to his brothers John W. and Judson L. Moore, complainants with him in the instant bill. On November 5, 1917, all the "lawful heirs of John Thornton," deceased, conveyed the land to complainants.

The respondents, Mrs. J.A. Carr, Miss M.C. Carr, and N.S. Carr allege in their answer that J.A. Carr, the husband and father, respectively, of respondents, for a valuable consideration had purchased of W.B. Carleton a mortgage on the lands, which mortgage was executed and acknowledged by H.F. Cotton and wife January 14, 1909, and duly filed for record January 20, 1909; that before maturity this mortgage and the debt secured thereby were transferred and assigned to said Carr (March 2, 1910), who duly foreclosed the same on June 25, 1910, according to recitals contained in the deed of T.S. Ruffin to Carr. It was purchased by Ruffin, who thereafter, July 2, 1910, conveyed it to Carr. It is further averred that Carr died intestate, leaving respondents as his only heirs at law; that after the purchase their father went into the possession of the land and so remained to the time of his death; that respondents then "went in possession of said lands, and did during one year rent the same to one or more of these complainants; and that they have remained in possession until this year, when a negro went into possession of a portion of the same; and that he has not surrendered the possession [of] the same; *** and that the said Thornton at the time of the execution of said mortgage to the said Carleton was in possession of said lands."

It is noted of complainants' chain of title that the prior mortgage by Cotton to Thornton is dated February 21, 1908 while the subsequent date of the mortgage by Cotton to Carleton (shown in respondents' chain of title) is January 14, 1909. However, the Cotton-Thornton mortgage was duly recorded on January 19, 1909, five days after the date of execution of the Cotton-Carleton mortgage and before the record of the later mortgage on January 20, 1909.

The primary question of fact--did Carleton have knowledge or notice of the existence of said previous mortgage given by Cotton to Thornton, through which complainants claim title--is answered in the affirmative by the mortgagor, his wife, and Mr. Thornton. It is not controverted that Thornton sold the lands to Cotton, taking his mortgage in question to secure the balance of the purchase price; that Carleton's mortgage was as security for materials that had been furnished in the construction of a building on other of Cotton's land. It was natural that Carleton should inquire of the vendor, Thornton, as to Cotton's title, and that he should have been informed by Thornton of the existence of the mortgage given to secure the purchase price of the land. So, also, it was natural, and demanded by honesty and fair dealing, that the mortgagor, Cotton, should disclose the Carr the true state of his title and of the incumbrance of the unpaid Thornton mortgage. Had Cotton not been prompted by such just motives, his warranty of title in his Carleton mortgage, implied by law from the use of the statutory words "grant, bargain, sell and convey" ( Blakeslee v. Mobile L.I. Co., 57 Ala. 205; Higman v. Humes, 127 Ala. 404, 30 So. 733; Sayre v. Sheffield L.I. & Coal Co., 106 Ala. 440, 18 So. 101; Chapman v. Abrahams, 61 Ala. 108; 2 Dev. on Deeds, § 946), and the provision therein for declaring the whole debt due, if the mortgagor should "in any manner dispose of the property," etc., demanded a truthful disclosure to the junior mortgagee (J.A. Carr) of the existence of the first mortgage on the property.

After consideration of all the evidence, we are of opinion that Carleton was so informed of this prior mortgage before and at the time of his taking the second mortgage in question. The recordation by Thornton of his mortgage of January 19, 1909, thereafter gave statutory notice to all parties in interest dealing with the land of the existence of the Thornton mortgage and that it was not satisfied of record. Veitch v. Woodward Iron Co., 76 So. 124; Sulzby v. Palmer, 196 Ala. 645, 651, 70 So. 1; Code 1907, § 3374.

Aside from the question of notice of the prior mortgage to respondents' ancestor and of knowledge thereof by the immediate grantor (conceding, without deciding, that there was a valid assignment or transfer of the Cotton-Carleton debt and mortgage to Carr), respondents have failed to offer the mortgage from Cotton and wife to Carleton, or the transfer and assignment thereof by Carleton to J.A. Carr. They have failed to prove that it is not in their possession, or either of them, as to authorize the admission of secondary evidence thereof. Crabtree v. Street, 79 So. 192. As a witness in his own behalf, N.S. Carr testified that there was such a mortgage and that it was transferred by Carleton to his father. However, of its then whereabouts he said: "That original mortgage may be among our papers, but I am not sure." Being recalled for further direct examination as to the loss of these necessary documents, in response to the question, "Have you in your possession, or has Mrs. J.A. Carr or Miss M.C. Carr, the original mortgage made by H.F. Cotton and wife to W.B. Carleton, and transferred to J.A. Carr by W.B. Carleton?" the witness replied:

"No, sir; I have not. I have looked among my papers since my former testimony in this case, and that mortgage is not among my papers nor among the papers of Mrs J.A. Carr nor Miss M.C. Carr."

It is not clear or evident that, though the mortgage in question may not have been among the papers of witness or among those of his mother or sister, it was not in the possession or control of one of said respondents. We do not by this mean to imply that there is anything in the record to show that the respondents were withholding the mortgage or the transfer thereof, but only that the predicate laid was insufficient to establish its loss, destruction, etc., as to permit the introduction of a certified copy thereof from the records in the office of the judge of probate. Without this evidence, respondents' title would fail even though the evidence had not shown the knowledge or notice of Thornton's mortgage by W.B. Carleton or J.A. Carr.

The fact that there was an adverse decision to Thornton in the one ejectment suit did not give absolute title to the Carrs since the statute requires two such judgments in ejectment to bar such suit. Code 1907, § 3858; Southern R.R. Co. v. Cowan, 129 Ala. 577, 586, 29 So. 985; Pritchard v. Fowler, 171 Ala. 662, 667, 55 So. 147; Williamson v. Mayer Bros., 117 Ala. 253, 23 So. 3. Respondents, being called upon to propound their claim and failing to show title, should not recover. Code 1907, § 5444; Pace v. Robertson Banking Co., 80 So. 425; Dennis v. McEntire, 187 Ala. 314, 65 So. 774; Kegley v. Rosser, 197 Ala. 109, 72 So. 381. Respondents are not relieved of their difficulty in failing to show title by the fact that T.S. Ruffin on July 2, 1910, undertook to convey the land to J.A. Carr, in the absence of evidence that Ruffin owned the land. That is to say, to show a conveyance thereof by Carleton and by Cotton. So far as the evidence discloses, the mortgage title from Cotton to Carleton remains in such mortgagee, subject to the mortgage of Cotton and wife to Thornton. R...