Figh v. Taber

• Decision Date: 12 June 1919
• Docket Number: 3 Div. 389
• Citation: 82 So. 495,203 Ala. 253
• Parties: FIGH et al. v. TABER.
• Court: Alabama Supreme Court

82 So. 495

203 Ala. 253

FIGH et al. v. TABER.

3 Div. 389

Supreme Court of Alabama

June 12, 1919

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Suit by E.R. Taber against John Figh and others to foreclose a mortgage and enforce a lien. Demurrers interposed by defendants were overruled, and they appeal. Affirmed.

Weil Stakely & Vardaman, of Montgomery, for appellants.

Horace Stringfellow, of Montgomery, for appellee.

MAYFIELD J.

Appellee filed his bill against appellants and Alva Fitzpatrick and W.B. Davidson, to foreclose a mortgage, and to enforce another lien for a thousand dollars against the lands described in the bill and mortgage. Fitzpatrick and Davidson thus far have interposed no defense. Appellants, however interposed demurrers, which being overruled, they prosecute this appeal.

Appellants claim title to the lands in question through the respondent Alva Fitzpatrick, and complainant also claims title through Fitzpatrick and Davidson, grantors, as mortgagors and lienors.

The case made by the bill is, in short, that on January 3, 1906 one Ivey and one Bridges conveyed to Fitzpatrick and Davidson the lands in question, and that on the day after, viz., the 4th of January, 1906, the grantees conveyed back to the grantors by mortgage, to secure the whole or part of the purchase price of the lands. On the 2d of March, 1906 practically three months after the execution of the deed and mortgage, the grantors and mortgagees transferred and assigned the mortgage to appellee. On the 22d of April, 1908, Alva Fitzpatrick executed the instrument which the attorneys for both parties call a "Declaration of Trust." Said instrument was filed for record in the county in which the land is located, viz., Coosa county, on the 2d day of May, 1908, four or five days after its execution. This instrument is witnessed by W.B. Davidson, and is in words and figures as follows:

"Alva Fitzpatrick, Declaration to B.P. Ivey, èt. als.

"State of Alabama, Montgomery County.

"Know all men by these presents, that I, Alva Fitzpatrick, hereby acknowledge and declare that I have a

one-third interest in the lands conveyed to W.B. Davidson and Alva Fitzpatrick by B.P. Ivey and Edgood Bridges and their wives by deed dated the 3d day of January, 1906, and duly recorded in the office of the judge of probate of Coosa county in Book L of Deeds and page 199 subject to the purchase money debts against said land in the shape of a mortgage thereon duly recorded and a note of $1,000, jointly signed and made by me and the two other parties in interest.

"I further acknowledge that the interest in said land represented by me belongs to the estate of Mrs. E.M. Figh, deceased, and will on any sale or disposition of the said lands account to the heirs or representatives of said estate for such interest.

"Witness my hand and seal this the 22d day of April, 1908. Alva Fitzpatrick. [ Seal.]

"Signed, sealed in the presence of: W.B. Davidson.

"Filed for record on the 2d day of May, 1908.

"J.A. Crawford, Judge of Probate."

While this declaration recites that the mortgage was recorded at the date of the declaration, so far as appears, it was not recorded until the 20th day of April, 1917, eleven years or more after its execution, and nine years after the date and recording of the declaration of trust.

On June 1, 1910, Mary M. Hale, as personal representative of the estate of Eliza M. Figh, obtained a judgment against Alva Fitzpatrick in the circuit court of Montgomery county for $8,908; and on the 3d day of July, 1914, a part of the land in question was sold under an execution issued on this judgment, Mary M. Hale becoming the purchaser at the price of $20; and an alias execution issued on the same judgment, and on June 18, 1917, was levied on other parts of the same land. It is also shown that Mary M. Hale was discharged as personal representative on July 31, 1916. It appears that Mary M. Hale is dead, and the suit was revived against her executor, W.D. Hale.

Opinion.

As both parties to the appeal claim title through Alva Fitzpatrick, the main question is: Which has the better title in a court of equity? If the mortgage under which appellee claims title had been recorded prior to the execution of the declaration of trust, or the inception of the lien by virtue of the judgment or execution--under which appellants claim--then there would be no question as to the priority and superiority of appellee's title in a court of law or equity.

Appellants claim that the failure to record this mortgage until after the sale under the execution rendered it void as to them, by virtue of the statutes. Appellee claims, however, that the statutes do not apply, because appellants were not judgment creditors or lienors without notice, within the meaning of the statutes, that the declaration of trust in their favor was on record, and that it recited the existence of the mortgage and of the lien for $1,000, and that this trust in the land was subject to their title and liens, under which appellants claim. To this appellants reply that they do not claim under or by virtue of this declaration, but by virtue of an execution sale and deed.

So far as the bill shows, and on demurrer its averments must be taken as true, appellants are not purchasers for value, and without notice of the claims and liens of appellee.

Appellants as well as appellee claim through Alva Fitzpatrick. The declaration of trust was evidently for the benefit of appellants; and hence they are chargeable under the allegations of the bill with knowledge of its contents--certainly with constructive knowledge thereof. While the recitals in it as to the mortgage being recorded were not true, yet the fact of the existence of the mortgage and the lien for $1,000 was true, and, if the notice given by these recitals had been followed up, knowledge of both the mortgage and note for $1,000 would have been acquired; and hence appellants on the face of the bill are chargeable with such knowledge or notice.

A somewhat similar case was presented to this court in the case of Center v. P. & M. Bank et al., 22 Ala. 743, 759, wherein the court said (which mutatis mutandis, as to names, may be applied to the facts of this case):

"The recital by way of description, in the mortgage from Ross to Carothers, which was recorded within the time required by law, three years before the judgment, although it does not amount to actual notice of the contents of the deed from Carothers to Ross, yet it is notice of its existence, and is sufficient to put one who claims through Carothers, upon the lookout, and direct him to the source whence full information may be obtained. In the exercise of ordinary prudence, both the bank and Wilson should have followed up the suggestion thus given, and inquired into the true state of the title. The mortgage is not between persons who are strangers to the title, even if it be as the defendants here claim it to be. One of the parties to it is the person through whom they assert their interest, and the premises described are those they have levied on and are seeking to sell. A resort to the deed book of the clerk of the county court of Mobile county, and an examination of the land deeds to which Carothers is a party, would have also informed them that these lots had been conveyed to Ross. This examination they should have made; and, whether they did so or not, they will be held to know all that these records would have revealed, had such an examination taken place. Boggs v. Varner, 6 Watts & Serg. [ Pa.] 469; Brandt v. Van Cortlandt, 17 Johns. [ N.Y.] 335; King v. Riddle, 7 Cranch, 168 (3 L.Ed. 304); (Lessee of Bonnet v. Devebaugh) 3 Bin. 175; (Hartzell v.

Brown) 5 Bin. 140."

This statement was explained in the case of Gimon v. Davis, 36 Ala. 592; but it shows that the doctrine announced applies to the facts as recited in this bill.

The doctrine as to notice by recorded instruments is stated in Jones on Mortgages, §§ 594, 736. The records of...