Taylor v. Burgett

• Decision Date: 22 December 1921
• Docket Number: 1 Div. 223.
• Citation: 207 Ala. 54,91 So. 786
• Parties: TAYLOR ET AL. v. BURGETT.
• Court: Alabama Supreme Court

91 So. 786

207 Ala. 54

TAYLOR ET AL. v. BURGETT.

1 Div. 223.

Supreme Court of Alabama

December 22, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill by Eleanor Sage Burgett, as administrator, against Mary Riley Taylor and others, to foreclose mortgage. Decree for complainant, and respondents appeal. Affirmed.

Sullivan & Stallworth, of Mobile, for appellants.

Gaillard Mahorner & Arnold, of Mobile, for appellee.

MILLER J.

This is a bill filed by the administratrix of the estate of Catherine G. Sage, deceased, to foreclose a mortgage executed by William A. Riley to her intestate, dated April 8, 1914, to secure a cash loan of $700. The mortgage is on a house and lot, particularly described therein, in Mobile, Ala. The mortgage debt was past due and unpaid when the bill was filed. William A. Riley, the mortgagor, died in July, 1917 intestate, before this suit was commenced, and his heirs are named as party defendants. They file answer in the nature of cross-bill and aver that the title to the house and lot was in their mother, Francis I. Riley, wife of William A. Riley; that she died intestate on September 7, 1889; that one Nicholas C Stallworth conveyed it to her by deed dated December 1, 1887, and that they inherited this property from their mother, subject to the life estate therein of William A. Riley, their father and her husband; and that the mortgage is not a lien now on the property, their fee-simple title, but was a lien only on the life estate of William A. Riley, which has terminated by his death.

The deed of N. C. Stallworth, conveying the property to Francis I. Riley, was dated December 1, 1887; it was never recorded until January 31, 1919; and it was found in the wardrobe in the house in this place after the death of William A. Riley, and four or five years after the mortgage was executed, delivered, and recorded. William A. Riley and his wife, Francis, lived in this house on this lot from 1887 until her death in September, 1889, and he and their children, or some of them, continued to occupy it as a home until his death in 1917. The title to this property from the records is shown in Nicholas C. Stallworth. A deed conveying it to him by the heirs of Christiana Hogg, dated August 12, 1887, was duly acknowledged and recorded on August 12, 1887. Nicholas C. Stallworth died in 1899. There being no will the title descended to his heirs.

In 1914 William A. Riley made application to complainant's intestate, Mrs. Sage, to borrow $700 on this property, representing that he owned it. He secured an abstract of title to it, by an attorney, for Catherine Sage. This abstract showed said deed to Nicholas C. Stallworth, and a quitclaim deed from the heirs of said N. C. Stallworth to William A. Riley, quitclaiming and conveying their interest in said property for a recited consideration of $1. It was dated and acknowledged March 9, 1914. Catherine E. Sage loaned William A. Riley $700 cash, evidenced by note secured by said mortgage, which contains covenants of warranty of title. It is dated, acknowledged and duly recorded on the same day-April 8, 1914.

Section 3383 of the Code of 1907, reads as follows:

"All conveyances of real property, deeds, mortgages, deeds of trust, or instruments in the nature of mortgages, to secure any debts, are inoperative and void, as to purchasers for a valuable consideration, mortgagees, and judgment creditors, without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees, or judgment creditors."

Was Catherine Sage a mortgagee for valuable consideration without notice of the unrecorded deed of Nicholas C. Stallworth to Francis I. Riley, and as such within the protection of the above section 3383 of the Code of 1907? She is a mortgagee; and the consideration is valuable-$700 cash loaned, secured by the mortgage. She connects herself with the record title, in Nicholas C. Stallworth by the mortgage executed by William A. Riley to her, and by the quitclaim deed of the heirs of Nicholas C. Stallworth, conveying their interest in it to William A. Riley. William A. Riley's actual, continuous possession of the property, claiming it as his own, for more than 25 years prior to the execution of the mortgage, also appears from the evidence. Justice Sayre, in Holly v. Dinkins, 202 Ala. 477, 80 So. 861, clearly wrote for this court:

"While a bona fide purchaser for value must connect himself with the legal estate (Shorter v. Frazer, 64 Ala. 74), the law is very clear that where one claims title to land through an instrument that is not recorded, as do appellees in this case, his claim will fail against one who has purchased the land in good faith, for a valuable consideration, without notice, actual or constructive, of such claim. Chandler v. Tardy."

The cross-respondents, as heirs of Francis I. Riley, claim title to this lot through a deed to her that was not recorded until nearly 5 years after this mortgage of Catherine Sage was executed and recorded, and nearly 4 years after it matured. Catherine Sage is a mortgagee of the property in good faith for valuable consideration, and connects herself with the legal estate; and, as such, is entitled to equal protection with a vendee, a purchaser in good faith, for valuable consideration, against an unrecorded deed. Rogers v. Adams, 66 Ala. 600; Coleman v. Smith, 55 Ala. 369; Earle v. Fiske, 103 Mass. 491.

So the real question is: Did Catherine Sage have notice, actual or constructive, of the unrecorded deed of Nicholas...