Chapman & Co. v. Johnson

• Decision Date: 09 February 1905
• Citation: 38 So. 797,142 Ala. 633
• Court: Alabama Supreme Court
• Parties: CHAPMAN & CO. v. JOHNSON.

38 So. 797

142 Ala. 633

CHAPMAN & CO. v. JOHNSON.

Supreme Court of Alabama

February 9, 1905

Appeal from Geneva County Court; Ed. Roach, Judge.

Action by J. J. Johnson against Chapman & Co. From a judgment for plaintiff, defendants appeal. Affirmed.

This was an action brought by the appellee against the appellants to recover damages resulting to the plaintiff by reason of the defendant purchasing two bales of cotton upon which plaintiff had a lien, and thereby depriving the plaintiff of the enforcement of said lien. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of the jury, and upon the hearing of all the evidence the court rendered judgment in favor of the plaintiff. From this judgment the defendants appeal, and assign the rendition thereof as error.

W. R Chapman, for appellants.

C. D Carmichael, for appellee.

DENSON J.

The plaintiff, Johnson, held a mortgage which was executed to him by one W. M. Newell on the 13th day of November, 1900, to secure an indebtedness of $100. The mortgage was made payable the 1st day of October, 1901, and conveyed the crop of Newell for the years 1900, 1901, 1902, and 1903, grown on his farm in Geneva county. That part of the mortgage descriptive of the crops conveyed was in the following words and figures, to wit: "And the entire crop raised by me, or for me, or in which I may be interested during 1900, 1901, 1902 and 1903 in Geneva county, Alabama, or elsewhere." In recording the mortgage, the judge of probate wrote the part descriptive of the crops conveyed as follows, to wit: "And the entire crop raised by me, or in which I may be interested during the year 19__ in Geneva county, Alabama, or elsewhere." The mortgage was duly filed for record in the office of the judge of probate of Geneva county (the residence county of the mortgagor) on the 23d day of November, 1900, as is shown by the following indorsement on the mortgage, namely: "Filed for record on the 23rd day of November, 1900, at 2 o'clock p. m., and recorded in Book 20, page 137 record of mortgages, Geneva county. Ed Roach, Judge of Probate." It is conceded by the parties to this controversy that the only question which is presented for review by the record is whether or not the mistake made by the judge of probate in the recordation of the mortgage as above shown, rendered the record of the mortgage ineffective as constructive notice to subsequent purchasers for value.

Section 987 of the Code of 1896 was brought down from the Code of 1852 in almost the exact language in which it appears in section 1270 of that Code. This section provides that a conveyance is operative as a record from the day of delivery to the judge. In the first case in which this section of the Code was construed (that of Mims v. Mims, 35 Ala 23), it appeared that a mortgage was executed in which the mortgagor acknowledged an indebtedness to the mortgagee in the sum of $122.40, to be paid on or before the 1st day of May next, " and the further sum of five hundred dollars, to be paid on or before the first day of January next. " The mortgage was duly filed for record, but the transcribing officer, in recording it, omitted the words which are italicized above, so that it appeared from the record to be a security only for the sum of $122.40. In the case of Seibold v. Rogers, 110 Ala. 438, 18 So. 312, it appeared that a mortgage was executed by J. W. Davis, but the transcribing officer recorded the name of the mortgagor as "J. W. Cavis." It was held in each case that under the statute the mortgage was not impaired in its efficiency against subsequent purchasers by the fact that there was a mistake made by the transcribing officers in making the record. Walker, C.J., in the opinion in the case first cited, reasons as follows: "The object and effect of the statute are clearly to place the conveyance, as soon as the grantee has discharged his entire part in procuring the record, by having it properly proved, or acknowledged and delivered to the officer, in the same attitude as if it were spread upon the record book. This statute relieves a party who has done all that is devolved upon him by the law from the consequence of the failure of the probate judge to discharge his duty, or of the imperfect manner in which he discharges it. The conveyance being operative as a record from its delivery to the judge, no subsequent mistake of his could deprive it of the operation thus given it by the law." In the case in 110 Ala. 438, 18 So. 312, the court said: "The delivery of the instrument to the probate judge for record was all that was required of the plaintiff [[mortgagee] to give notice of his lien. He was not required to supervise the act of the probate judge in recording the paper, and hence it is immaterial, as far as the plaintiff's rights are concerned, that the recording officer committed an error in writing the mortgagor's name 'Cavis' instead of 'Davis' upon the mortgage record." It is further stated by the court, substantially, that the conclusion...