Boyd v. Beck , 29 Ala. 703 ( 1857 )

STONE, J.

In the case of the State, ex rel. Spence, v. The Judge of the 9th Judicial Circuit, 13 Ala. 805, it was decided, that “ where one has acquired a fixed domicile, a temporary absence on business or pleasure, Avith the intention of returning, and an actual return in accordance with such intention, will not work a change of domicile.” — Sears v. The City of Boston, 1 Metcalf, 250 ; Bempde v. Johnstone, 3 Vosey, jr., 198. Where-persons conduct a business at two or more places, devoting a portion of their time to each, the intention of such persons, when it can be ascertained, exercises a controlling influence in determining the domicile.— Story on Conflict of Laws, § 47 ; Howard College v. Gore, 5 Pick. 370; Somerville v. Lord Somerville, 5 Vesey, 787-8-9.

The only evidence of a change of Mr. Bell’s domicile, at a time material to the rights of these parties, is that of the witness Philpot. He Avas, no doubt, honest in his convictions ; but his testimony is greatly outAveighed by that of the numerous witnesses on the other side. Our conclusion is, that on the 28th March, 1838, and. until after the close of the year 1839, Mr. Bell was a citizen of Montgomery county.

The testimony of the witness Whiting shows, that each bill of exchange, after the first, was taken by the bank in renewal of the original debt. We consider it well settled in this State, that the renewal of the evidence of the debt is neither a payment, nor a discharge of the lien of the mortgage.— Moore v. Spence, 6 Ala. 506 ; Conner v. Banks, 18 Ala. 42; Cullum v. Branch Bank of Mobile, 23 Ala. 797 ; Alston v. Alston, 2 Hill’s (S. C.) R. 362; Lee v. Fontaine, 10 Ala. 765.

Whether the mortgage'of the 30th September, 1839, was a release and satisfaction of that bearing date 28th March, 1838, presents a graver question. In Billingslea v. Harrell, 11 Ala. 775, this court held, that a mortgage creditor, who takes a second mortgage, on the same and other property, extending the law-day to a period beyond the time stipulated in the first, thereby binds himself not to proceed on the first. On the authority of this case, it is here contended, that the appellant discharged the lien of his first mortgage by taking the second. The argument, though plausible, is not sustained by the case of Billingslea v. Harrell, supra. The supreme court of New York, Cowen, J., delivering the opinion of the court, in a case involving the precise point here raised, held, after an elaborate examination of authorities, that a second mortgage on the same property, to secure the same debt, and extending the law-day, was not a discharge of the lien of the first. — Gregory v. Thomas, 20 Wend. 17. We assent to the reasoning on which the above case rests, and hold, that the lien of the first mortgage was not destroyed by the execution of the second. It operated only a postponement of the law-day. — Alston v. Alston, supra; Lee v. Fontaine, supra.

It is contended for appellees, that the property conveyed by the first mortgage from Bell to Boyd and Talliaferro was carried by Bell to Talladega county, and that said property became liable for the debts to them there contracted, because the mortgage was not recorded in the office of the clerk of the county court of Talladega county, pursuant to the statute. Clay’s Digest, 255, § 4. We will not stop to inquire whether Pharr & Beck are creditors within the meaning of this statute. The testimony of the witnesses Williams and Wilkins shows, that -Pharr & Beck had notice of this mortgage before they received their conveyance ; and hence they were not creditors without notice. In the case of Bearing v. Watkins, 16 Ala. 20, this court said, “ 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 which the statute intended to place within his reach.” Dargan, J., thought this question had been so often determined, that it was not open to controversy. — Dearing v. Watkins, supra. We concur in the opinion that registration is only necessary, as a means of giving notice ; and that when the reason fails, the statute does not apply. See on this point the following authorities : Smith v. Branch Bank at Mobile, 21 Ala. 125; Smith v. Zurcher, 9 Ala. 208 ; Bolling v. Carter & Womack, 9 Ala. 921 ; Walker v. Miller, 11 Ala. 1067; Ohio Life Insurance Co. v. Ledyard, 8 Ala. 866. The defendant Beck does not deny notice of the former mortgage. This is equivalent to an admission of notice. — DeVendal v. Malone, 25 Ala. 272.— We hold, then, that Beck can claim no advantage as a creditor under the first section of the act of 1823. — Digest, 255, § 4.

The residence of Bell at the date of the mortgage to Pharr & Bock, August 7, 1839, being in Montgomery county, the act of 1828 required that such mortgage should be recorded in that county, within thirty days after its execution ; and in case of failure, declares that “ the same shall be void against creditors and subsequent purchasers without notice.” — Digest, 255, § 5. Was Boyd, in taking the second mortgage, either a creditor or a purchaser within the meaning of this statute? We think not. He parted with nothing valuable, and incurred no new liability, as a consideration for said second mortgage. It was executed by Bell as a further security of a pre-existing debt. In such case, Boyd stands in no better position, as to latent equities, than Bell himself occupied.— Andrews & Bros. v. McCoy, 8 Ala. 920 ; Padgett v. Lawrence, 10 Paige, 170 ; Dickerson v. Tillinghast, 4 Paige, 215; Bank of Mobile v. Hall, 6 Ala. 639.

We hold, then, that the only claim of appellant, Boyd, which can assert a superior lien over the rights of defendant Beck, is the debt secured by the first mortgage. The claim of Boyd under the second mortgage, is subordinate to that of Bock under his mortgage.

Wo cannot, on the facts of this case, perceive any foundation on which to rest the plea of the statute of limitations. It has been expressly held in this .court, that the mortgagor and his vendee hold i,n subordination to the title of the mortgagee not adversely to him. Hence, in such case, the statute does not run, even after the law-day has past. — Herbert v. Hanrick, 16 Ala. 581 ; Foster v. Goree, 5 Ala. 424. There is much good sense in this rule. Until foreclosure, the mortgagor owns the equity of redemption. This he may alien, or transfer to another. It cannot bo known, without some overt act, throwing off allegiance, that the mortgagor or ,his vendee is not quietly enjoying the possession of the equity of redemption, at all times acknowledging the rights of the mortgagee. We feel satisfied i.n declaring, that there was no adverse holding, at least until the sale under the mortgage to Pharr & Beck. See Bryan v. Weems, at the last term.

We do not wish to be understood as declaring that there is no limit beyond which a mortgagee out of possession cannot maintain an action. — See 2 Story's Equity, § 1028 b. All we decide is, that the right is not barred in this case; the interval between the sale by Pharr & Beck and the commencement of this suit being less than six years.

In holding that the law presumed a satisfaction in this case, we think the chancellor erred. In the language of the witness Whiting, the original debt was renewed, or extended, at various times; the last renewal or extension being in 1841, due at twelve months. In 1848 the debt was put in judgment. On 29th January, 1845, partial payment was made on the debt, being proceeds of the. note of W. J. Howard, amounting to ‡6;367 32. The balance, =$3,807 24, was paid in May, 1845, being proceeds of note of H. P. Caffey. In the case of Carpenter v. Devon, 6 Ala. 718, it was decided, that reducing a debt to judgment does not destroy the relation of principal and surety. — See, also, Comegys & Perhouse v. Booth & Bell, 3 Stewart, 14 ; Clay’s Digest, 206, § 23. The payment made by Boyd 29th January, 1845, gave him a present right of action at law against Bell. That action was not barred by limitation until six years afterwards ; say, January 29th, 1851. Before that time arrived, this suit was instituted. We know of no principle of equity which authorizes us to presume, as a legal conclusion, the satisfaction of a debt, on lapse of time short of the limitation at law. In Cullum v. Branch Bank at Mobile, our predecessors held, that the bar of the debt by the statute of limitations did not destroy the lien created by the mortgage. — See 28 Ala. 798. True, that was real estate, requiring a much longer time to perfect a bar, than is required to bar debts by simple contract. But it is certainly an authority against the presumption of satisfaction in law, which the chancellor indulged in this case.

We need not, and do not, now announce what would be our opinion, if, to the long acquiescence of Boyd in the possession of Bell and'those holding under him, there was added the other fact, that the debt itself was barred by the statute of limitations. It will be sufficient to meet that point when it arises. — See Johnson v. Johnson, 5 Ala. 90 ; Humphres v. Terrell, 1 Ala. 650 ; Sims v. Canfield, 2 Ala. 555 ; Bryan v. Weems, at the last term.

For the error above pointed out, the decree of the chancellor must be reversed, and the cause remanded.

We think it best to lay down certain rules to be observed in taking the account.

The record contains no evidence that Bell had any connection with the payment made with the proceeds of Howard’s note. We suppose Boyd is entitled to the benefit of this payment. We are satisfied the Caffey note was received from Bell, and Boyd cannot rightfully claim any reimbursement on account of that claim.

The mortgaged property is responsible for so much of the original debt of $7,000, with its interest, as was paid by Boyd. So much of the debt as was caused by the incorporation of the bill for $1,000 with the main debt, at the renewal, August 19, 1839, with its interest, is not a proper charge against the property in the hands of Bgck. The amount properly chargeable on the property can be ascertained, by subtracting from the sum actually paid by Boyd the pro rata share representing the $1,000 and its interest. • This will show the proper debit against the property.

In making this estimate, another point must be guarded. The Caffey note, not being embraced in either mortgage, must be regarded as a payment by Bell on general account. No' direction appears to have been given as to its application. It'must, then, be considered as a payment on the entire debt. In other words, its proceeds must be applied, pro -rata, on the two original demands of $7,000 and $1,000. This will operate a ratable reduction on each item.

This will be subject to the following credits :

1. The Lee tract of land. If this tract was sold by Boyd pursuant to the directions contained in the mortgage, the proper charge, on this account, will be the price it commanded. If the tract of land was not sold by Boyd within a reasonable time after he had obtained possession, but he retained the land as his own, then he is chargeable with its value at the time he obtained it, or the amount for which it was sold, at the option of Beck.

2. The hire, or damages, recovered of Parsons, and the value of the slave Dick at the time he was recovered ; this value to be determined in the same manner as the value of the land.

8. The sum received from Farley in compromise.

4. The moneys received of the estate of Talliaferro, so far as Boyd has had the benefit of them, in virtue of his co-sure-tyship with Talliaferro on the said debt of Bell, must also be accounted for on the two demands ; that is, after allowing the credits above, the said sums received from Talliaferro’s estate must be, so far as received by Boyd, applied pro rata, to the balance of the debit, as the same may be found to represent the two original debts of $7,000 and $1,000.

The decree of the chancellor is reversed, and the cause remanded for further proceedings, in accordance with the principles of this opinion.

Rice, C. J., not sitting.