O'Neal v. Seixas

• Decision Date: 19 July 1888
• Citation: 4 So. 745,85 Ala. 80
• Court: Alabama Supreme Court
• Parties: O'NEAL ET AL. v. SEIXAS.

4 So. 745

85 Ala. 80

O'NEAL ET AL. v. SEIXAS.

Supreme Court of Alabama

July 19, 1888

Appeal from chancery court, Lauderdale county; THOMAS COBBS Chancellor.

Bill filed by Henry O. Seixas, as transferee of a mortgage against Emmet O'Neal and others, to have the description of the lands attempted to be conveyed corrected, and the lands sold for the payment of the debt secured. The bill alleges that one Neander Rice, being indebted to Isaacson Seixas & Co., executed to them on the 24th day of August 1875, a mortgage on certain real estate, in words and figures as follows: " The State of Alabama, Lauderdale County: For and in consideration of the sum of one hundred and sixty 25-100 dollars, with interest, which I am indebted to Isaacson, Seixas & Company, of New Orleans, La., I hereby agree that if said debt shall not be paid on or before the 1st January, 1876, to turn over to them a lot of land near Florence, north of the fair-grounds, containing 35 acres, more or less, to be sold by said Isaacson, Seixas & Co. or their attorneys for the satisfaction of said debt; and the excess, if any, after the payment of the said debt, to be refunded to the undersigned. This August 24, 1875. [Signed] N.H. RICE,"-and attested by Emmet O'Neal and E. A. O'Neal. The bill further alleges that the mortgage was probated and recorded, and described the property therein sought to be transferred more definitely and correctly; and that the said Rice conveyed the lands to his wife, Lucy E. Rice, who died in 1882, and bequeathed the same to the other defendants in the bill, except the appellant O'Neal; that the said mortgage note was transferred to complainant for a valuable consideration, and that the appellant Emmet O'Neal claims an interest in the said lands by virtue of a quitclaim deed made to him by one Crow; that at the time of this conveyance, or pretended conveyance, of interest in the land, by the said Crow, the said O'Neal had full knowledge of said mortgage; and that the said Crow was not in possession of the said lands at the time he attempted to convey them to O'Neal, nor did he have any right to or interest therein, but claimed a right thereto by a verbal agreement to purchase the lands from said Rice, which agreement was never consummated. The defendant O'Neal dumurred to the bill on the ground that the mortgage sought to be enforced was void for uncertainty and misdescription; and on the further grounds of the statute of limitations of ten years; that the bill showed on its face that the defendant O'Neal was an innocent purchaser; that the alleged transfer of the said mortgage to the complainant was not shown to have been in writing, but must have been done verbally, and that such verbal transfer would not authorize complainant to institute this suit; and that the personal representative of Mrs. Lucy E. Rice was not made a party to these proceedings. The chancellor overruled all of these demurrers, and the defendant appealed, and assigns the ruling of the chancellor on the said demurrers as error.

Emmet O'Neal, for appellant.

SOMERVILLE J.

1. The land is described in the mortgage of the complainant as "a lot of land near Florence, north of the fair-grounds, containing 35 acres, more or less." A more accurate description of it is given in the bill, coupled with the averment that this was the only such lot situated in that locality of which the mortgagor, Neander H. Rice, was seized and possessed at the time of the execution of the mortgage, on August 24, 1875. The description is not so vague and indefinite as to be incapable of being aided by parol evidence of identification, when read in the light of the circumstances surrounding the contracting parties at the time the conveyance was made. Nor would it be necessary that the mortgagee should have been placed in actual possession of the premises, that being only one of the usual, but not indispensable, modes of identifying lands conveyed by uncertain terms of description. Chambers v. Ringstaff, 69 Ala. 140; Ellis v. Martin, 60 Ala. 394; Varnum v. State, 78 Ala. 28; Meyer v. Mitchell, 75 Ala. 475; 2 Washb. Real Prop. (5th Ed.) 535, 536. The first five grounds of demurrer, based on this phase of the mortgage, were properly overruled.

2. The mortgage in question did not, it is true, convey to the mortgagees the legal title, but only an equitable estate in the land. Yet it was "an instrument in the nature of a mortgage," and such instruments are authorized to be recorded so as to be brought within the benefits of the registration statute, and when recorded in time may operate as constructive notice to subsequent purchasers. This has been the law in this state since the Code of 1852, although the rule prior to that time was different. Code 1886, § 1810; Code 1852, §§ 1287, 1288; Fash v. Ravesies, 32 Ala. 451. The present statute is, in substance, the same as that in New York, which was construed as far back as the year 1815, to embrace equitable mortgages. "The statute," it was observed, "speaks of any writing in the nature of a mortgage, and these words may reach to any agreement creating an equitable incumbrance. The design of the statute was that every purchaser should look to the registry of mortgages, and see whether there was any mortgage, or any writing in the nature of a mortgage, previously executed by the grantor." Parkist v. Alexander, 1 Johns. Ch. 394, 399; Hunt v. Johnson, 19 N.Y. 279; Thomas, Mortg. (2d Ed.) § 458. In Pierce v. Jackson, 56 Ala. 599, an equitable mortgage was held to be such a conveyance as was authorized to be...