Wittmeir v. Leonard

Decision Date09 May 1929
Docket Number6 Div. 220.
Citation219 Ala. 314,122 So. 330
PartiesWITTMEIR v. LEONARD ET AL.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by J. S. Wittmeir against A. J. Leonard and others to foreclose a mortgage. From a decree denying relief and dismissing the bill, complainant appeals. Reversed and remanded.

Arthur L. Brown, of Birmingham, for appellant.

Huey &amp Welch and W. G. Stone, all of Bessemer, for appellees.

THOMAS J.

The bill by appellant sought foreclosure, and relief was denied on grounds to be considered.

Appellant in March, 1907, became and thereafter was the owner of the property made the subject of the mortgage sought to be foreclosed, having improved and erected a building thereon sold to Leonard who executed a mortgage of date of July 3, 1913, for $850 for the recited security of and as "being (the) balance of the purchase money," and said instrument was filed for record on August 10, 1916, and duly recorded in the probate office in the county where the land was situated. Said mortgagor remained in possession until October 22, 1914, when he sold to W. C. Bailey, subject to said mortgage or vendor's lien, conveying by warranty deed containing the following:

"The State of Alabama, Jefferson County.
"Know all men by these presents, That for and in consideration of Two Hundred Fifty ($250.00) Dollars and indebtedness due J. S. Wittmeir to the undersigned Grantor A. T. Leonard and wife, Alice Leonard in hand paid by W. C. Bailey, the receipt whereof is hereby acknowledged, we do grant, bargain, sell and convey unto the said W. C. Bailey," etc.

The respondents, of whom was Bailey, admitted in their pleading the debt recited to complainant, J. S. Wittmeir, saying: "These respondents admit that the recited consideration in the last named deed was $250.00 and the indebtedness due J. S. Wittmeir;" yet deny that it was "made to appear from said deed that said Wittmeir had any lien on the property in question, nor is the nature of the indebtedness then due complainant in any manner disclosed;" and aver that "the recital in said deed is not sufficient to put these respondents on notice, either actual or constructive that the indebtedness due complainant was evidenced by the notes and mortgage sought to be foreclosed in this action." Hence these issues of controverted fact are presented for decision.

It is clearly shown that, when Leonard sold to Bailey, the latter was informed of the existence, amount, and nature of complainant's claim and lien; that he acquiesced therein, and paid some portion of the purchase money or lien notes to Wittmeir through his agent, the First National Bank, where the mortgage and notes were left for collection and transmission of proceeds to complainant. These facts are admitted by Bailey's evidence. When Bailey and wife sold and conveyed to M. M. Massey, the recited consideration was $1,250. "Massey was to assume the indebtedness to Dr. Wittmeir (complainant)-the indebtedness that I (Bailey) assumed from Mr. Leonard and that was still unpaid; and for the balance I (Bailey) taken a mule rated at $200.00." The witness Bailey stated the items of that consideration: "The $1,250.00 consideration expressed in the deed of myself and wife to M. M. Massey consisted of a $200.00 note of Massey to me, secured by a mortgage on the property involved in this suit, a mule which we put in the trade at $200.00; two hogs aggregating $50,00; a check for $87.50, and the notes of A. T. Leonard to J. S. Wittmeir plus the interest then due on said notes, and the balance in cash sufficient to make up $1,250.00." This witness further said that, before Massey bought this property, he was informed by the grantor that there was a mortgage on it from Leonard to Wittmeir, which witness "had assumed;" that he informed purchaser that "Leonard had told me (witness) of this mortgage. I (witness) had paid some of these notes, *** at the First National Bank;" that said purchaser verified with him these liens at the bank "before we closed the trade," and they had the cashier "to figure the accumulated interest" on said indebtedness to Wittmeir. The deed from Bailey and wife to M. M. Massey is of date of February 4, 1916, and filed for record March 30, 1916.

A note and mortgage filed for record of date of February 15, 1916, from Massey and wife for $200, payable November 1, 1916, recited that it "is further understood that this mortgage is given to secure the balance of the purchase price of said property herein conveyed." And it bore the further indorsement: "For and in consideration of the sum of $200.00 in hand paid to me by W. D. Bush, I, W. C. Bailey, do hereby grant, bargain, sell and convey and assign all my right, title, interest and claim in and to the within mortgage and the indebtedness secured to the said W. D. Bush. This September 9, 1916. W. C. Bailey." And this "transfer" was filed for record September 18, 1916, and the mortgage bore the record date of February 15, 1916. It will also be noted that the mortgage from A. T. Leonard to appellant, J. S. Wittmeir, was duly filed for record in said probate office on the subsequent date of August 10, 1916. The delay in record is fully explained by the retention of the mortgage for collection in Birmingham by Wittmeir's attorney, who was instructed to have the mortgage recorded, and failed to so do, and, when the oversight was noted after the death of that attorney, the same was duly recorded on August 10, 1916, about a month before the mortgage from Massey to Bailey was transferred by W. C. Bailey to respondent W. D. Bush. Bailey further testified of this transaction as follows:

"Dr. Wittmeir told me that he had a mortgage on the property. I said, 'Do you know that mortgage is not on record?' I don't remember what he said, but I told him it didn't make any difference whether he had one or not as long as I kept the place, that I intended to pay it anyway. ***
"When I traded with Massey I told him that there was a mortgage on the property. ***
"*** at the time this trade was made we were in the First National Bank in Bessemer. I had started to the bank for the purpose of borrowing money on the Massey mortgage. I met Mr. Bush on the street or near or in the bank. Mr. Bush told me he would take the mortgage, and I think $190.00 was the consideration. I signed the transfer on both the note and mortgage. I do not recall whether or not I delivered to him the title certificate marked 'Respondent's Exhibit D' when I sold the note and mortgage to Mr. Bush; but I had procured the title certificate for the purpose of getting money on the note and mortgage. ***
"I looked at the deed that Leonard gave me. The indebtedness from Leonard to Wittmeir was mentioned in the deed.
"Q. As a part of the consideration? (Respondent objects, because the deed speaks for itself.) A. It was mentioned in the deed."

Bailey does not testify that he gave Bush notice of Wittmeir's mortgage; Bush denies that he had such knowledge and said that Bailey gave him a certificate of title, had the mortgage transferred; and on his redirect examination testified that he must have "given him the whole thing," and at this time there was due to Dr. Wittmeir 56 notes (we interpolate $10) "on the Leonard mortgage" to Wittmeir. The account of this transaction by Bush is as follows:

"I sold W. C. Bailey a house and nine or eleven lots, and at the time I bought one lot from him. The occasion of my buying the note and mortgage marked respondent's Exhibit 'C' was that Bailey told me he wanted to get some money from the First National Bank of Bessemer, and said he was not very well acquainted with Mr. Lewis, the President of the Bank, and asked me to go down there with him. I do not recall where we were when this conversation took place, but suppose it was at my house,-that is my best recollection. I asked him how much he wanted, and he said he wanted about two hundred dollars, and said he had a mortgage he wanted to sell them, or discount it. I told him I would meet him there at the bank next morning. I did meet him at the bank the next morning. He handed me the mortgage and certificate of title. ***
"I told him Yes, we could get the money on that. I told him I would let him have the money on it. I let him have the money right there. The note and mortgage were transferred to me there at that time and place. The date that appears on the transfer on the mortgage and the note, September 9th, 1916, is the date of the transfer of those papers to me.
"Before I purchased the note and mortgage I read the certificate of title. I had been familiar with the land all my life. ***
"This note and mortgage of Massey to Bailey was never paid to me. I had the mortgage foreclosed."

This transfer of the Massey mortgage was on September 9, 1916 recorded September 18, 1916, after the prior record of the mortgage from Leonard to Wittmeir on August 10, 1916. A few years thereafter W. D. Bush, said transferee, deeded the property to F. J. Davis on September 26, 1919 (recorded December 3, 1919), reciting a consideration of $1,500, and secured by mortgage of date of October 14, 1919, and recorded on that date. This was foreclosed by W. D. Bush and conveyed to John Bush, and there was a quitclaim deed by said Davis and wife to W. D. Bush of April 9, 1926; and quitclaim...

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22 cases
  • Lee v. Macon County Bank
    • United States
    • Alabama Supreme Court
    • January 7, 1937
    ... ... immaterial whether the statutory notice was or was not given ... This subject was fully considered in Wittmeir v. Leonard ... et al., 219 Ala. 314, 122 So. 330; Leslie v. Click ... et al., 221 Ala. 163, 128 So. 170; Dewyer v. Dover ... et al., 222 Ala ... ...
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    • November 14, 1935
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  • Jefferson County v. Mosley
    • United States
    • Alabama Supreme Court
    • August 21, 1969
    ...to the existence of an unrecorded deed is not a purchaser without notice within the protection of the registry statutes. Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330; Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190; Cole v. Birmingham Union R. Co., 143 Ala. 427, 39 So. 403; Pep......
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    ...of the existence of a prior unrecorded mortgage has the same effect as if the mortgage had been duly recorded. See e.g., Wittmeir v. Leonard, 122 So. 330 (1929). A mortgage, though not recorded, is valid and passes title as between the parties. See In re Haas, 31 F.3d 1081, 1084 (11th Cir.1......
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