Fouche v. Swain , 80 Ala. 151 ( 1885 )

SOMERVILLE, J.

The interest which the complainant claims to the lands in controversy is derived through a junior mortgage executed on May 12, 1869, by one Prior to one Cothran, as trustee, of the debt secured by which the complainant is the transferree.

In whatever aspect we regard the bill — whether as one brought by a junior mortgagee to redeem, or to sweep away other incumbrances claimed to be invalid, and to foreclose the complainant’s mortgage — it is equally lacking in equity.

If the purpose be redemption, this is a recognition of the validity of the prior mortgage, and it would be necessary to offer in the bill to pay the amount due on such,superior incumbrance, and, in the absence of such an offer, the bill would be wanting in equity. — Rison & Co. v. Holden, 77 Ala. 515; Cramer v. Watson, 73 Ala. 127.

The bill, however, contains no such offer and plainly has no such purpose as redemption in view. On the contrary, it attacks the validity and priority of the title acquired by the appellee, Mrs. Swain, through a mortgage, or trust deed executed for her benefit by Prior on January 14, 1869.

Under the facts stated in the bill, the truth of which is admitted by the demurier of appellees, the complainant’s title was subordinate and inferior to that of Mrs. Swain. This is made manifest from the statement of two very plain propositions.

In the first place, the trust deed executed by Prior for Mrs. Swain’s benefit was given to secure a part of the unpaid purchase money on the land in controversy, and being signed and delivered on January 14, 1869, was prior, in point of time, to complainant’s mortgage by nearly four months. True it was not recorded until after the execution and registration of the trust deed under which complainant claims, but it was delivered to the probate judge, or, as commonly expressed, was filed for record, on April 26,1869, or more than two weeks before the making and recording of complainant’s mortgage. Under the statute every conveyance of this kind is “operative as a record from the day of the delivery to the judge,” and such delivery, therefore, places the legal and equitable rights of the mortgagee precisely on the same basis as if his mortgage were fully and accurately recorded, without even a mistake. — Code, 1876, § 2149 ; Mims v. Mims, 35 Ala. 23.

The title of Mrs. Swain being thus superior to complainant’s, we can see nothing in the facts of the case’ by which this priority has been lost or forfeited. It is shown that in January, 1870, a bill was filed by Mrs. Swain to foreclose her trust deed against Prior. This suit, however, was compromised, and, pursuant to the terms of settlement between the litigants, Prior and wife conveyed the mortgaged lands — or more properly speaking, their interest in them — to Mrs. Swain by deed bearing date October 7, 1872. It may be conceded this deed did not affect the rights of complainant, as acquired by the transfer to him of the Cothran trust deed, because Prior could convey no better title than what he owned. No more did it affect the prior mortgage and superior title of Mrs. Swain. It may have satisfied it as between her and Prior, just as the successful prosecution of the foreclosure suit would have done. But as to any junior incumbrancer, her superior equity would still be preserved in its full force and vitality. There would be but a poor show of logic in holding that this strengthening of her title by Mrs Swain, lias, after all, but served to weaken it. It is common practice for courts of chancery to keep alive equitable liens and incumbrances as against strangers or third parties. r Equity could often be but badly administered without it.

There are other grounds, perhaps, upon which the correctness of the chancellor’s rulings could be sustained, but we desist from considering them." The demurrer to the bill was properly sustained, and the decree is affirmed.