Hendley v. First Nat. Bank

• Decision Date: 07 October 1937
• Docket Number: 8 Div. 792
• Citation: 176 So. 348,234 Ala. 535
• Parties: HENDLEY et al. v. FIRST NAT. BANK OF HUNTSVILLE.
• Court: Alabama Supreme Court

176 So. 348

234 Ala. 535

HENDLEY et al. v. FIRST NAT. BANK OF HUNTSVILLE.

8 Div. 792

Supreme Court of Alabama

October 7, 1937

Appeal from Circuit Court, Madison County; E.H. Parsons, Special Judge.

Suit to foreclose a mortgage by the First National Bank of Huntsville against Tamar T. Townsend and others, in which there was a cross-bill by Charles V. Hendley and others to establish priority of a senior mortgage. From a decree granting relief to original complainant and denying relief to cross-complainants, cross-complainants appeal.

Reversed and remanded.

David A. Grayson and Chas. V. Hendley, both of Huntsville, for appellants.

Watts &amp White, of Huntsville, for appellee.

BOULDIN Justice.

This litigation concerns the equities between a senior and a junior mortgagee of real estate. In particular, the junior mortgagee challenges the senior mortgage as a subsisting lien upon the ground that the same is barred by prescription. Without dispute the senior mortgage was given some 40 years before the junior mortgage, and some 45 years before any rights were asserted in this cause by the holder of such senior mortgage.

The mortgagor remained in possession until his death some 24 years after the maturity of the senior mortgage, and thereafter possession has been continuously held by his widow and heirs at law, who executed the junior mortgage.

On the other hand the senior mortgagee, in pleading and proof asserts that the senior mortgage was promptly recorded, and stands unsatisfied on the record, that the mortgagor made numerous payments on interest and principal within the prescriptive period, and continued to make partial payments until his death; and thereafter his widow and heirs succeeding to the equity of redemption, continued to make partial payments, especially the annual interest, until 1929, 1 year before the original junior mortgage was given.

Without going into further detail the evidence of such partial payments is satisfactory and without dispute. The parties here concur in the view that the sole question is whether this senior mortgage is still in force and effect as to the balance due.

Appellee, the junior mortgagee, relies upon the now well-settled rule that the 20-year period of prescriptions creates an absolute bar, a conclusive, not a rebuttable presumption; a rule of repose fixing a definite period beyond which courts will not inquire into matters permitted to sleep for 20 years, and which judicial experience has found more of injustice than of justice in entertaining them. Snodgrass v. Snodgrass, 176 Ala. 276, 58 So. 201; Patterson v. Weaver, 216 Ala. 686, 114 So. 301; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820.

But the fault of the argument is in failing to note when the prescriptive period of 20 years begins to run in the various classes of cases.

The basic principle of prescription is not the mere lapse of time, but the lapse of time within which no recognition of a subsisting and continuing right or obligation appears.

As applied to mortgage liens, the rule is quite well stated in Braun v. Pettyjohn, 176 Ala. 592, 58 So. 907, 908, in this wise:

"It is true that, according to numerous decisions of this court, 20 years has been fixed as the period of prescription, after which mortgages upon which there had been no payment, or other acknowledgment, will be presumed to have been paid, and claims of every kind will be presumed to have been settled. McArthur v. Carrie's Adm'r, 32 Ala. [ 75],

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