Carr v. Moore, 5 Div. 724

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation82 So. 473,203 Ala. 223
Decision Date15 May 1919
Docket Number5 Div. 724
PartiesCARR et al. v. MOORE et al.

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. [82 So. 474]

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...

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15 practice notes
  • Bingham v. Sumner, 2 Div. 733
    • United States
    • Supreme Court of Alabama
    • May 12, 1921
    ...estate, and its allegations conform to statutory requirements. Code, § 5443; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Carr v. Moore, 203 Ala. 223, 82 So. 473. It was by Martin T. Sumner, the husband of testatrix, against Mrs. Rosemary Bingham, her niece. The bill was challenged by the ge......
  • Norville v. Seeberg, 1 Div. 160
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...or means the same is created or derived. S.S.S. & I. Co. v. Yancey, 201 Ala. 200, 77 So. 726; Davis v. Daniels, 85 So. 797; Carr v. Moore, 203 Ala. 223, 82 So. 473; Gill v. More, 200 Ala. 511, 517, 76 So. 453. The prayer of the bill for general and specific relief was further amended to the......
  • Hobson v. Robertson, 1 Div. 705.
    • United States
    • Supreme Court of Alabama
    • December 17, 1931
    ...121 Ala. 210, 25 So. 924; Morgan v. Lehman, Durr & Co., 92 Ala. 440, 9 So. 314; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Carr v. Moore, 203 Ala. 223, 82 So. 473; Foy v. Barr, 145 Ala. 244, 39 So. 578; Screws v. Heard, 217 Ala. 14, 114 So. 360; Gill v. More, 200 Ala. 511, 76 So. 453; Seeber......
  • Miller v. Woodard, 6 Div. 545.
    • United States
    • Alabama Supreme Court
    • April 13, 1922
    ...as distinguished from a disputed or "scrambling" possession, was considered in Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473; Burgin & Hicks v. Hodge, supra. No specific ground of demurrer challenged the bill for this failure of averment. Respondent, however......
  • Request a trial to view additional results
15 cases
  • Bingham v. Sumner, 2 Div. 733
    • United States
    • Supreme Court of Alabama
    • May 12, 1921
    ...estate, and its allegations conform to statutory requirements. Code, § 5443; Davis v. Daniels, 204 Ala. 374, 85 So. 797; Carr v. Moore, 203 Ala. 223, 82 So. 473. It was by Martin T. Sumner, the husband of testatrix, against Mrs. Rosemary Bingham, her niece. The bill was challenged by the ge......
  • Norville v. Seeberg, 1 Div. 160
    • United States
    • Supreme Court of Alabama
    • December 16, 1920
    ...or means the same is created or derived. S.S.S. & I. Co. v. Yancey, 201 Ala. 200, 77 So. 726; Davis v. Daniels, 85 So. 797; Carr v. Moore, 203 Ala. 223, 82 So. 473; Gill v. More, 200 Ala. 511, 517, 76 So. 453. The prayer of the bill for general and specific relief was further amended to the......
  • Hobson v. Robertson, 1 Div. 705.
    • United States
    • Supreme Court of Alabama
    • December 17, 1931
    ...121 Ala. 210, 25 So. 924; Morgan v. Lehman, Durr & Co., 92 Ala. 440, 9 So. 314; Burgin v. Hodge, 207 Ala. 315, 93 So. 27; Carr v. Moore, 203 Ala. 223, 82 So. 473; Foy v. Barr, 145 Ala. 244, 39 So. 578; Screws v. Heard, 217 Ala. 14, 114 So. 360; Gill v. More, 200 Ala. 511, 76 So. 453; Seeber......
  • Miller v. Woodard, 6 Div. 545.
    • United States
    • Alabama Supreme Court
    • April 13, 1922
    ...as distinguished from a disputed or "scrambling" possession, was considered in Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473; Burgin & Hicks v. Hodge, supra. No specific ground of demurrer challenged the bill for this failure of averment. Respondent, however......
  • Request a trial to view additional results

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