Lovelady v. Plunkett
| Decision Date | 27 February 1941 |
| Docket Number | 6 Div. 755. |
| Citation | 200 So. 612,240 Ala. 615 |
| Parties | LOVELADY v. PLUNKETT. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.
Bill in equity by Lydia Lovelady against W. A. Plunkett for declaratory judgment as to priority of mortgages, to set aside foreclosure of respondent's mortgage and redemption. From a decree dismissing the bill, complainant appeals.
Affirmed.
St John & St. John, of Cullman, for appellant.
W. E James and Herman J. Stewart, both of Cullman, for appellee.
The question here primarily is the priority of appellant's mortgage given by one Patterson over that given by him to appellee.
The bill in equity was filed by appellant and as amended is in two aspects. It first seeks a declaratory judgment as to whether her mortgage takes precedence over that of appellee and in the event it is found to be subordinate, that the foreclosure of the mortgage of appellee be set aside, and that she be permitted to exercise the equity of redemption as amended, the bill does not seek to enforce the statutory right. The grounds on which it is sought to set aside the foreclosure are fraud, oppression and inequitable conduct of appellee in that connection, and excessive amount of the debt claimed.
The court found and decreed that appellant's mortgage was subordinate to that of appellee, and that the foreclosure was not due to be vacated as sought, and denied further relief.
The ground on which appellant relies in support of her claim of priority is that her mortgage was taken and fully executed prior to that of appellee, and that though it was not recorded prior to the execution of the latter mortgage, appellee had notice of it before he took his. Appellant's mortgage was executed April 12, 1928, and filed for record February 15, 1930. Appellee's mortgage was executed November 9, 1929, while it was recorded November 12, 1929; that fact is not here material.
The material question immediately considered, in whether appellee had notice of appellant's mortgage when he took his. Of course this does not mean actual knowledge. If he was informed of the existence of such a claim at the time of or before he took his mortgage, it was his duty to inquire of appellant and not rely solely on the record. There is no contention as to this legal duty. But the controversy relates to the question of whether he was so informed.
The only evidence to support appellant's claim is that of her son and of herself. Her son testified that in 1934, he had a conversation with appellee in which the latter said that he had heard of appellant's claim, that Patterson (the mortgagor) told him she had a mortgage, but he examined the records and none was recorded, and so he made the deal. Appellant testified that not so long before appellee foreclosed his mortgage (shown to have been February 22, 1937), appellee mentioned to her about paying off her mortgage, but when told that it was several hundred dollars, he refused to do so. That in the latter part of 1935, or spring of 1936, she had a conversation with him at Bailey's store, north of the postoffice, in Cullman, in which he told her that he examined the record and found no mortgage, and if he could get his on record first that his would be first and her's was no account.
Appellee testified that he had a conversation with her before he foreclosed his mortgage, and did tell her that if it was for just $200 or $300 he would take it up rather than have trouble, but would not pay $800 or $900, which she told him Patterson owed her. That he also had a conversation with her at Bailey's, in which she told him Mr. St. John advised her to buy his mortgage but she was not able to do so, but he said nothing about getting his on record first; she then asked him to release some of the land so she could have a first mortgage on some of it. This last statement was not denied by her. Appellee testified that he had no such conversation with appellant's son as he testified; that he first learned of her mortgage in 1931, when he was told that it was on record. That he had a conversation with her on creek hill about a mile from appellant's home. In it she said she was to blame; that she took the mortgage and laid it in her trunk and forgot to have it recorded until she heard of appellant's mortgage.
Appellee also proved that most of the consideration of his mortgage went to pay off two prior recorded mortgages which had precedence over that of appellant, and sought by a cross-bill to secure the equity of subrogation in event his mortgage was held to be inferior to that of appellant. But under the ruling of the court, it was not necessary to consider that claim.
The burden was on appellant to prove that appellee had notice actual or constructive, of her mortgage, since appellee proved that he made a loan of money at or about the time of the execution of his...
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