Steele v. Adams , 21 Ala. 534 ( 1852 )

GOLDTHWAITE, J.

— The principal question presented by the record is, as to the effect of the presence of the plaintiff in error at the time the slave sued for was sold under execution, and his failure on that occasion, under the circumstances by which he was surrounded, to disclose his claim. We understand the general rule to be well settled, that where one knowingly suffers another, in his presence, to purchase property to which he has a claim or title, which he wilfully conceals, he will be deemed, under such circumstances, to have waived his claim, and will not afterwards be permitted to assert it against the purchaser or his privies, Watson v. McLaren, 19 Wend. 557; Bird v. Benton, 2 Dev. Law R. 179; Storrs v. Parker, 6 Johns. Ch. R. 166; Wendell v. Vanrenssalaer, 1 Johns. Ch. R. 354; and this principle may be asserted in relation to personal property, in a court of law. Hare v. Rogers, 9 B. & Cress. 586. The reason of the rule is founded on the moral duty which devolves upon the person having the claim, if present, to make it known to the purchaser; and failing to assert it at a time when common honesty required him to do so, the law will not allow him afterwards to insist upon it, against him whose purchase may be attributed to his culpable silence. But if the party so present is not apprised of his rights, or if, from any other cause, the duty does not devolve upon him of asserting them, to protect the purchaser from injury, it is evident, that, in such cases, as there is no violation of duty, the reason of the rule ceases, and the rule itself does not apply.

It is, however, urged by the counsel for the plaintiff in error, that mere silence is not sufficient to authorize the application of the rule: that it must be a deceptive silence, and that the proof that it is so lies upon the purchaser. It is unquestionably true, that it devolves upon the purchaser to establish the fact upon which the validity of his own title depends, and, under the rule which we have laid down, the silence of a person, to amount to the waiver of a claim on his part, must be wilful; and it necessarily follows, that the character of the silence which is essential to invalidate the claim set up, and thus render his own title good, must be established by the purchaser. But this character requires no positive proof, and may be inferred by the jury, whenever the surrounding circumstances are such, as to warrant the belief that the silence of the party having the title or claim to the property, was incompatible with innocence of intention or object; and if such was the case, we regard it as immaterial whether it did or did not influence the act of the purchaser. The law is not founded on the supposition, that the purchase was made for the reason that the party having the claim was silent, but because such party is supposed to have waived his claim, by the failure to assert it.

The record discloses the fact, that the claim of the plaintiff in error to the slave sued for was founded on a mortgage, executed to him by^Abram Borland, which had been duly recorded in the proper county, and the law day of which had expired before the sale of the properiy under execution; and the question is presented, as to the application of the rule upon this state of facts. As the object of the notice is, to prevent injury to tbe purchaser, it is clear, that tbe reason of tbe rule ceases, and its application could not properly be made to those cases, where tbe purchaser was apprised of tbe existence and character of the claim. Notice and the assertion of the claim, so far as he was concerned, would be a useless and unnecessary act; and the whole question in this aspect, is, as to the effect of the registration of the mortgage of Borland to the plaintiff in error, as notice. The whole object of the statutes of registration in relation to mortgages, is, to furnish to all notice of claims- of this character, by requiring the instrument creating the lien to be recorded in a designated public office, which is accessible to all; and the uniform course of decision of all courts has been, to consider a compliance with these acts as equivalent to actual notice, so far as to charge a subsequent purchaser. It was upon this ground that Chancellor Kent, in the case of Brinkerhoof v. Lansing, 4 Johns. Ch. R. 66, held, that it was not incumbent on the witness to a lease, with knowledge of its contents, and holding a registered mortgage on a portion of the premises, to disclose his incumbrance to the lessee; and that, in such case, as the latter was chargeable with notice by the registration of the mortgage, it would require direct proof of intentional fraud and deception, to postpone the mortgagee to a subsequent purchaser. We think, therefore, that the registration of the mortgage of the plaintiff in error operated, as to the subsequent purchaser and his privies, precisely the same as if they had actual notice of its existence; and the fact that the law day had passed before the purchase was made, does not, in our opinion, place the purchaser in any better position, as the retention of mortgaged property by the mortgagor after the law day, is not, as in the case of an absolute sale, prima facie evidence of fraud, (Simerson v. Branch Bank at Decatur, 12 Ala. 205,) nor a circumstance to which the law attaches the conclusion of payment. Planters’ and Merchants’ Bank v. Willis & Co., 5 Ala. 771. It is true, as was decided in the case last referred to, that the retention of the possession after the law day, for an unreasonable length of time, by the mortgagor, is a circumstance from which the jury might infer the payment of the mortgage debt; but as the law does not attach this inference to such possession as a legal presumption, tbe purchaser would not be authorized to infer payment, unless under such circumstances as would satisfy the jury of that fact.

The view which we have taken of the law, in relation to the effect of registration as notice to the purchaser, will probably be decisive of the case on a future trial, and renders it unnecessary for us to express an opinion on the other points presented in the argument.

The charge given by the court below, and the refusal to give the first and second charges asked, being in conflict with the view which we entertain of the law, the judgment must be reversed, and the cause remanded.