Wittmeir v. Leonard
Decision Date | 09 May 1929 |
Docket Number | 6 Div. 220. |
Citation | 219 Ala. 314,122 So. 330 |
Parties | WITTMEIR v. LEONARD ET AL. |
Court | Alabama 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 & Welch and W. G. Stone, all of Bessemer, for appellees.
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 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 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: 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:
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:
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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... ... 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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Jefferson County v. Mosley
...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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