Leslie v. Click

• Decision Date: 17 April 1930
• Docket Number: 8 Div. 117.
• Citation: 221 Ala. 163,128 So. 170
• Parties: LESLIE v. CLICK ET AL.
• Court: Alabama Supreme Court

128 So. 170

221 Ala. 163

LESLIE v. CLICK ET AL.

8 Div. 117.

Supreme Court of Alabama

April 17, 1930

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Bill to remove a cloud from title to real estate by Henry Click and Nannie Click against Mary Leslie, with a cross-bill by respondent against complainants and Edd Ikard, Emma Ikard John S. Ikard, Joe C. Click, and Ida Click. From a decree for complainants, respondent Leslie appeals.

Reversed and remanded.

Claud D. Scruggs, of Guntersville, for appellant.

John A Lusk and D. Isbell, both of Guntersville, for appellees.

THOMAS J.

The bill had for its purpose the removal of a cloud from real property in Marshall county. The answer and cross-bill asserted the validity of Miss Leslie's mortgage, and prayed foreclosure. This mortgage was immediately recorded in Madison county where a portion of the land lay, and was delayed in its record in Marshall county, where some of the land embraced in that conveyance was south of Paint Rock river. Between the time of record in the two counties, a conveyance of the Marshall county lands was effected by the grantor in the Leslie mortgage.

The system of recordation of written instruments of the class provided by our statute is set forth in section 6853, et seq., 1928 Code. And it is declared that the record in the proper office of a conveyance of property that is legally admitted to probate operates as constructive notice of the contents of such conveyance or instrument, etc. Section 6860 Code. This held to apply to all rights and title in lands as easements and restrictions running with the land. Malone v. Decatur Cotton Compress Co., 211 Ala. 522, 100 So 807; Birmingham v. Graham, 202 Ala. 202, 79 So. 574.

In the recent decision in Wittmeir v. Leonard, 219 Ala. 314, 318, 122 So. 330, the authorities were collected and the announcement made that every word in a conveyance is presumed to have been used for some purpose and to have some effect, if it may be given effect under the context in which it is used; that a purchaser is chargeable with notice of what appears on the face of a conveyance in the chain of title to his lands; and that one having knowledge sufficient to put him on inquiry respecting an unrecorded mortgage is not a purchaser without notice. The excepting clause of the statute (Code § 6887) is: "Unless the same have been recorded [we interpolate where the land is situated. Georgia Loan & Trust Co. v. Butler, 214 Ala. 390 (107 So. 863)] before the accrual of the right of such purchasers, mortgagees, or judgment creditors." The Ikards' mortgage to Miss Leslie (the respondent-complainant in the cross bill) contained the words: "The following described real estate lying and being in the County of Madison (and Marshall) in the State of Alabama," which was described by the government subdivisions as the eight-acre tract thereof, indicated as "lying on both sides of Paint Rock River;" and the fifteen acres indicated in Marshall county specifically declared to be on both sides of said Paint Rock river; and the forty-seven acres of irregular shape and boundary and described in the deed of J. P. Maples and wife to said Ed Ikard of date of September 21, 1912, filed for record in the office of the probate judge of said Madison county, to which deed reference is "made for a particular description," and being in "all 247 acres more or less." That conveyance was duly recorded in Madison county on February 28, 1918, and in Marshall county on March 30, 1921.

Thus were the grantees in the conveyance by said mortgagors (Ikards) to Joe and Ida Click, who purchased the whole tract, informed by the recitals of the conveyances that were embraced in the chain of title, and of the existence of the mortgage on the lands, in both counties, to Miss Leslie. Wittmeir v. Leonard, supra.

The bill and answer and cross-bill employ the descriptions of conveyance and those by government surveys and references to the river. Courts and citizens have judicial knowledge of water courses such as Paint Rock river. Kay & Son v. Ala. Cotton & Grain Co., 211 Ala. 454, 100 So. 863; Hodge v. Joy, 207 Ala. 198, 92 So. 171; Snodgrass v. Snodgrass, 217 Ala. 128, 115 So. 21. And the questions of whether or not the immediate and subsequent purchasers had knowledge or notice or sufficient facts to put upon them the duty of a proper inquiry are presented by the pleadings and evidence.

The grantees of the whole tract from the Ikards were Joe and Ida Click, who conveyed the lands in Marshall county to Henry and Nannie Click; and it is averred they likewise had notice of cross-complainant's (Leslie's) claim or lien to said lands; that the latter executed to Joe and Ida Click a mortgage to secure the balance of purchase money, and on which it is averred and shown a substantial sum is still due. This last conveyance was executed on September 20, 1919, recorded on the 8th day of March, 1920, in Marshall county; thus did it antedate the record of the Leslie mortgage in Marshall county on the 30th day of March, 1921.

It is further alleged and also shown that Mary Leslie's mortgagors (Edd Ikard and Emma Ikard) executed to one John S. Ikard their mortgage on these lands (and other lands contained in the mortgage to cross-complainant); and there appears in the office of the judge of probate of Marshall county such a mortgage for $20,000 purported to be executed by the Ikards. The several persons above indicated as parties with an interest are made parties to the cross-bill, and respectively called upon to show "what lien, mortgage or incumbrance he has on any of said lands"; and the cross-bill prays that she (Mary Leslie) be declared to have a good and valid lien through her mortgage on the lands in Madison and Marshall counties; that, at the time of conveyance "of the land" described in the cross-bill by Edd Ikard and wife to Joe C. Click and Ida Click, the latter had notice of cross-complainant's mortgage, and that Henry C. and Nannie Click knew or had notice of cross-complainant's mortgage at the time of their purchase, and took the same subject to her said mortgage; that if Henry and Nannie Click purchased without knowledge or notice, that the decree require the balance due on the purchase price, subject to "the payment of the balance due on the mortgage of said Henry and Nannie Click to Joe Click," to the payment on cross-complainant's mortgage given by the Ikards. The further appropriate prayer is for a reference to ascertain the amount due on cross-complainant's mortgage, reasonable attorney's fees for services rendered in that behalf, and to ascertain priorities of all of said liens, and for sale of the lands to discharge the mortgage liens according to their priorities.

The conveyance of date of September 20, 1919, from Edd Ikard and wife to Joe C. and Ida Click describes the lands as lying in Madison and Marshall counties, and by surveyor's calls, distances, and physical objects, as trees designated by species, public road, indicated "a fence *** along section line *** cedar stake," and the further general description that it was the "same land conveyed to Edd Ikard by J. P. Maples and wife in the year 1912 and of record in Madison County, Alabama," and it was duly recorded in Marshall county before record of the Leslie mortgage.

Likewise, the conveyance from Joe and Ida Click to Henry and Nannie Click of date of February 12, 1920, was duly recorded on June 29, 1920, in Marshall county before the recordation of the Leslie mortgage in that county on March 30, 1921. And the mortgage securing the balance of purchase money from said Henry and Nannie Click to the said Joe and Ida Click of date of February 12, 1920, was recorded on January 5, 1921, before the recordation of Miss Leslie's mortgage. The descriptions in the conveyance were by government numbers, calls of surveys, natural objects, etc. (The conveyance from Edd Ikard and wife for $20,000 to John Ikard was of date of October 11, 1921, and recorded in Madison county, October 11, 1921; Limestone county, October 19, 1921, and Marshall county, October 8, 1924.) There are three questions presented for decision by assignment of errors and argument of counsel. The objection to the taking of testimony before the cause was at issue for such purpose as to all the parties to the record. In this there was error. Ex parte Kelly (Ala. Sup.) 128 So. 443; § 6580, Code. It was an irregularity that could and appears to have been waived by the objecting parties (Reynolds' Adm'r v. Pharr, 9 Ala. 560), in that the same did not specifically assign that action of the court as error in the note of testimony and assignment of errors in this court.

It is shown by the evidence that Henry Click and wife were due a large sum of $1,500 or $2,000 to Joe C. Click on the purchase from Joe and Ida Click of lands in Marshall county, and of these and other lands in Madison county, all of which lands were embraced in the superior mortgage of Ikard to Leslie and which conveyance was duly executed and recorded in Madison county, still due and unpaid. And a part of that consideration was the past debt due by Ikard to Joe Click-the mortgage to Miss Leslie-of about $1,800 or $1,900. It follows that Joe Click was not a bona fide purchaser for value without notice; and that consideration to the extent indicated would intercept any superior right, if such he had, to the Marshall county land for failure of due or prompt record of the Leslie mortgage. As to the land he purchased in Madison, he had constructive notice, if not knowledge, or had notice of facts that amounted to sufficient notice, to put him on inquiry against all the lands embraced in Miss Leslie's mortgage. Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330. It would appear...