Georgia Loan & Trust Co. v. Butler

• Decision Date: 14 January 1926
• Docket Number: 6 Div. 965
• Citation: 214 Ala. 390,107 So. 863
• Parties: GEORGIA LOAN & TRUST CO. v. BUTLER et al.
• Court: Alabama Supreme Court

107 So. 863

214 Ala. 390

GEORGIA LOAN & TRUST CO. v. BUTLER et al.

6 Div. 965

Supreme Court of Alabama

January 14, 1926

Rehearing Denied April 8, 1926

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Bill in equity by R.D. Butler and others against the Georgia Loan &amp Trust Company and others. From a decree for complainants, the named respondent appeals. Affirmed.

F.E St. John, of Cullman, for appellant.

Ward Nash & Fendley, of Oneonta, for appellees.

BOULDIN J.

The bill is filed for the sale of lands for division among tenants in common.

Complainant R.D. Butler claims title in himself, brother, and sister by inheritance from their mother, Nancy Butler, deceased. Georgia Loan & Trust Company is made party respondent as claimant of an interest in the land. The claim of this company is the litigated issue in the case.

Daniel Butler, father of the Butler children, executed a deed to Nancy Butler, his wife, conveying 80 acres of land, one 40 situated in Blount county, and the other in St. Clair. The deed was recorded in Blount county, but not in St. Clair.

After the death of Nancy Butler, Daniel Butler executed a mortgage on the lands to the Loan & Trust Company, which was duly recorded in both counties, and later foreclosed under power of sale and the deed recorded. The company claims the 40 acres of land in St. Clair county under its mortgage and deed. The bill was filed after Daniel Butler's death. Conveyances of real property must be recorded in the county in which the same is situated. Code, § 6859.

The deed to Nancy Butler, not being recorded in St. Clair county was inoperative as to the lands in that county against bona fide purchasers or mortgagees from Daniel Butler without notice. Code, § 6887; Burnett v. Roman, 68 So. 353, 192 Ala. 188; Langley v. Pulliam, 50 So. 365, 162 Ala. 142.

To maintain the claim of a bona fide mortgagee without notice of an unrecorded deed, the mortgagee must aver in pleading the consideration for his mortgage, and that he parted with it without notice in fact of the prior deed. The answer of defendant sufficiently avers a contemporaneous loan of money to Daniel Butler, but is entirely silent on the question of notice. When it comes to the evidence, the burden is on the mortgagee to first prove the consideration of his mortgage then the burden shifts to the holder under the unrecorded conveyance to prove notice. Here the respondent offered...