Tait v. American Freehold Land Mortg. Co.

• Decision Date: 11 February 1902
• Citation: 31 So. 623,132 Ala. 193
• Parties: TAIT v. AMERICAN FREEHOLD LAND MORTG. CO.
• Court: Alabama Supreme Court

31 So. 623

132 Ala. 193

TAIT v. AMERICAN FREEHOLD LAND MORTG. CO.

Supreme Court of Alabama

February 11, 1902

Appeal from chancery court, Wilcox county; Thos. H. Smith Chancellor.

Bill by the American Freehold Land Mortgage Company against Narcissa Tait for cancellation of a deed and subrogation to a mortgage. From a decree in favor of complainant, defendant appeals. Reversed.

It was averred in the bill that on January 25, 1888, Charles E Tait, who was the son of Narcissa Tait, borrowed from the complainant $5,000 for the purpose of paying a debt due by said Charles E. Tait to J. Paul Jones, E. N. Jones, and R. C Jones, and that, to secure the money so borrowed from the complainant, the said Charles E. Tait executed a mortgage upon certain lands, which he specifically described in the bill; that the debt to the complainant was evidenced by a promissory note which was due on January 25, 1893; that the debt due by Charles E. Tait to the Joneses was secured by a mortgage upon the same lands, which was executed on February 8, 1886. It was then averred in the bill that on the same day that Charles E. Tait executed a mortgage to the Joneses he also executed a mortgage to the defendant, Narcissa Tait, on the same lands, in which mortgage to Narcissa Tait it was recited that it was a second mortgage to that given by said Charles E. Tait to J. P., E. N., and R. C. Jones. The bill then averred that the complainant was induced to make the loan to C. E. Tait by reason of a written application of Charles E. Tait for such loan, wherein it was stated that the land was unincumbered, except by the Jones mortgage, and also by an abstract which was furnished by a capable lawyer, which showed that the mortgage from Charles E. Tait to Narcissa Tait had been marked "Satisfied" upon the record. The averments of the bill as to the mortgage to Narcissa Tait being marked "Satisfied" are sufficiently stated in the opinion. It was further averred that Charles E. Tait made default in the payment of his mortgage to the complainant and thereafter the complainant foreclosed the mortgage under the power of sale contained in said mortgage, and became the purchaser of said lands conveyed in said mortgage; that, after such purchase by the complainant, Charles E. Tait leased the lands from the complainant, and occupied them for several years; that in the year 1899, after the foreclosure and the purchase by the complainants, Charles E. Tait executed a deed to said lands to Narcissa Tait; that thereafter Narcissa Tait instituted an action of ejectment for the recovery of said lands. The prayer of the bill was that the deed from Charles E. Tait to Narcissa Tait in 1899 be canceled as a cloud upon complainant's title; that the complainant may be subrogated to the rights of J. Paul Jones, E. N. Jones, and R. C. Jones under the mortgage given them by Charles E. Tait; and that the defendant be enjoined from the further prosecution of her action of ejectment. The defendant demurred to the bill, interposed a motion to dismiss the bill for the want of equity, and also filed her answer, in which she specifically denied that she had executed an authority to mark the mortgage to her "Satisfied" on the record, or had ever authorized any one to do so for her. The other facts of the case are sufficiently stated in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree overruling the demurrers and the motion to dismiss the bill for the want of equity, but decreed that the complainant was entitled to the relief prayed for. From this decree the defendant appeals, and assigns the rendition thereof as error.

R. T. Ervin, for appellant.

Miller & Miller, W. R. Nelson, and Hugh Nelson, for appellee.

McCLELLAN C.J.

The title of the mortgage company through its mortgage executed by Charles E. Tait in 1888 is a perfect title, evidenced by muniments in all respects regular and valid, as against the deed executed by said Charles E. to Narcissa Tait in 1899. That deed is therefore not a cloud on complainant's title, and the present bill has no equity to a cancellation of it as a cloud on title.

Whether the bill has equity to the end of subrogating the complainant to the lien of the mortgage executed by Charles E. Tait to the Joneses, and which mortgage was paid off by complainant depends upon whether it avers that the mortgage executed by said Charles E. to Narcissa Tait, which was secondary to the Joneses' mortgage, was at the time of the execution of the mortgage to complainant a subsisting incumbrance on the land, and entitled to priority of satisfaction apart from the doctrine of subrogation. We find no such averment in the bill. It does appear by the bill that on the same day Charles E. Tait executed the mortgage to the Joneses he also executed a mortgage to Narcissa Tait, subject to the lien of the Joneses' mortgage; that said mortgage to Narcissa Tait was duly recorded in the office of the judge of probate prior to March 5, 1887; that on the day just named James T. Beck made the following entry on the record of said mortgage: "This mortgage is satisfied in full, and so entered by me on the authority of Mrs. Narcissa Tait, mortgagee. This 5th March, 1887. J. T. Beck. Authority pasted herein;" that the "authority" under which Beck acted, and to which he refers as above indicated, was the following writing: "To Honorable James T. Beck, Judge of the Court of Probate of Wilcox County, Alabama: You will please enter satisfaction and payment in full of the mortgage made and executed by Charles E. Tait and his wife, Adali L. Tait, to me, dated the 8th of February, 1886, and recorded in Book of Mortgages No. 6, pages 490, 491, and 492, and let this be your authority for so doing. This 4th day of March, 1887. Narcissa Tait. Attest: S.W. McDowell;" that this writing was signed, or...