Dearing v. Watkins , 16 Ala. 20 ( 1849 )

DARGAN, J.

Although a mortgage be not recorded, yet if one with actual notice purchase the mortgaged property of the mortgagor, he buys subject to the mortgage, and as against him the mortgage cannot be considered invalid, because it has not been recorded in the manner prescribed by the statutes. This has been so often determined by this court, that it cannot now be considered as a question open to controversy. Smith v. Zurcher, 9, Ala. 208; Bolling v. Carter, et al, 9 Ala. 921, Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; 4 Ala. 469. These decisions accord with decisions of other States on statutes similar to our own, (Sec 4 Halst. 193; 1 Pick. 164; 1 Metc. Rep. 214,) and in our judgment harmonize with the reason upon which the statutes were made.

The object of registration laws is, to give notice that subsequent purchasers and creditors be not deceived ; and if one purchase with actual notice, he' is in possession of that information-that the Statute intended to place within his reach. If he buys the mortgaged property, with notice of the mortgage, he cannot complain that he has been deceived or defrauded.

The argument, however, in this case, assumes that the mortgage deed is inchoate or incomplete, until it is duly acknowledged or probated in a manner that would authorize its being recorded; and as the mortgage, which is the foundation of the plaintiif’s title, has never been acknowledged, it is invalid as against a subsequent purchaser with notice. A mortgage deed, like all others, is perfect and complete between the parties thereto, when signed, sealed and delivered. The law does not require it to be probated or recorded in order to give it validity, as between the parties to it, but requires its registration merely that all may have an opportunity to know of the existence of the deed.

The charge of the court goes on the ground, that the mortgage is invalid as against a purchaser with actual notice, because it was executed in Georgia, conveying property in Alabama. We can see no reason for such a distinction. It was a valid deed between the parties in Georgia, and equally so here; and as the defendant had actual notice of it, he stands in the same relation to it as if the deed had been duly proved and recorded.

We might have closed this case, and sent it back for another trial, but as there is another question presented, which may become a material inquiry in a subsequent trial,' we propose briefly to express our opinion upon it. The court charged the jury that if the mortgagor retained the possession of the slaves, after the law day had passed, that this was prima facie evidence of fraud. In the case of the Plan. and Mer. Bank, v. Willis, 5. Ala. 770, it is said, “ that if the seller of personal' property retains the possession after the execution of an ab-’ solute bill of sale, the transaction is prima fade fraudulent-, arid to free it from this legal imputation, the purchaser must show some special reason why the possession did not ac: company the transfer. But the same rule cannot be applied to a mortgage of a chattel, although the mortgagor fail to pay file debt intended to be secured thereby. And although the mortgagee do not take immediate possession, or commence suit by bill in equity or otherwise, it cannot be assumed as a conclusion of law that the mortgage is' fraudulent,-' Thfe doc--trine laid down in this case is recognized in the' subsequent case of Limerson v. the Br. Bank at Decatur, and we will here add that it meets our approbation.

I understand, that when the law will prima facie presume fraud, because the possessson does not follow foe transfer, that this legal presumption of fraud arising from the retention of possession, will not be rebutted or explained by mere proof, that the consideration of the transfer was búnafidé; but in addition to this, the vendee or claimant must show some, sufficient reason, why foe possesssion was permitted to remain with the vendor. Now a mortgage is a mere security for a debt: The mortgagee may file his bill in equity to foreclose and sell, without troubling himself with the possession, or lie1 may sue at law the debt is the principal, the mortgage foe-security, and the law cannot denounce a mortgage as fraudulent, simply because the mortgagee does not take possession on the day the condition is forfeited.

If no suit be commenced, nor the possession changed, but it is permitted to continue with the mortgagor, these are circumstances to be weighed by the Jury, if the bona fides of the - mortgage is assailed.; and these circumstances will have the more weight, the longer the possession is retained without any demand being made for lire property, or suit commenced-The jury will weigh these circumstances j in connexion with' all the proof, in coming hr a conclusion, whether the deed is fraudulent or not; but the law cannot pronounce a mortgage fraudulent, because the mortgagor retains the possession of the chattel after the law day is past.

As the ruling of the Circuit Court was opposed to the view here taken, the judgment must be reversed and the cause ro-tnsmefed-