Fortson v. Bishop

• Decision Date: 14 October 1920
• Docket Number: 8 Div. 130
• Citation: 86 So. 399,204 Ala. 524
• Parties: FORTSON et al. v. BISHOP.
• Court: Alabama Supreme Court

86 So. 399

204 Ala. 524

FORTSON et al. v. BISHOP.

8 Div. 130

Supreme Court of Alabama

October 14, 1920

Appeal from Circuit Court, Jackson County; W.W. Harral, Judge.

Bill by J.B. Bishop against W.S. Fortson and others to set aside a sale of land under mortgage foreclosure, to redeem, and for other relief. From a decree for complainant respondents appeal. Reversed and remanded.

Street & Bradford, of Guntersville, for appellants.

W.H Norwood and John F. Proctor, both of Scottsboro, for appellee.

McCLELLAN J.

Bishop, the appellee, filed this bill against W.S. Fortson Bank of Albertville, J.R. Sherman, and W.A. Fortson. Its object is to disaffirm foreclosure, under power of sale, of a mortgage executed to secure balance of purchase money of the land described in the bill, by Bishop to W.A. Fortson and assigned through other respondents to appellant, and to redeem. The mortgage did not authorize the mortgagee or his assignee to purchase at the sale, and hence disaffirmance and redemption are the appellee's due. The decree correctly so concluded. The contested questions, touching the amount to be paid on redemption, presented by the assignments of error, arise out of the fact that at the time Bishop bought the land from W.A. Fortson and received his warranty deed there was an outstanding superior seasonably registered mortgage on a part of the land, executed by W.A. Fortson and wife to Mrs. P.F. Pope, securing a note for $450, with interest. Before the maturity of Bishop's note and mortgage to W.A. Fortson, he assigned this negotiable note, secured by the mortgage, to the Bank of Albertville, the bank assigned to Sherman, and Sherman, after maturity, assigned to W.S. Fortson, appellant.

The disaffirming redemptioner, under the thus re-established equity of redemption resulting from Bishop's mortgage to W.A. Fortson, invoked the court to so adjust, to toll, the amount necessary to effect such redemption by the amount necessary to satisfy the Pope mortgage--superior and outstanding at the time Bishop purchased the land from W.A. Fortson--to which Bishop appears to have succeeded by a conditional assignment from Mrs. Pope. The basis of Bishop's claim is predicated of the breach of warranty in the deed (Code, § 3421) from W.A. Fortson to Bishop because of the outstanding, superior incumbrance imposed upon part of the land by the earlier mortgage executed to Mrs. Pope by W.A. Fortson, Bishop's grantor--a covenant that was breached as soon as made. 3 Mich.Dig.Ala.Rep. p. 780 et seq. Both W.A. Fortson and W.S. Fortson were alleged and proven to be insolvent. If the appellee's note and mortgage, under which the redemption is sought, had remained the property of the mortgagee, instead of being assigned, as stated, this appellant, Bishop, the redeeming mortgagor, would have been entitled to a reduction in the amount necessary to effect redemption to the extent of the amount of damages consequent upon the breach of W.A. Fortson's warranty, resulting from the fact that there was an outstanding, superior mortgage held by Mrs. Pope. Conner v. Smith, 88 Ala. 300, 310, 311, 7 So. 150. In the circumstances, the determinative question is whether the appellant was entitled to the protection the law accords a bona fide purchaser for value without notice.

The Bishop note to W.A. Fortson was a negotiable instrument. The mortgage securing its payment was an incident to the note and in the...