Wilkinson v. Solomon , 83 Ala. 438 ( 1887 )

CLOPTON, J.

The undisputed facts are, that about or shortly after the maturity of the note secured by the mortgage, from which plaintiff derives title to the property in controversy, the mortgagor delivered to the mortgagee several bales of cotton, of value sufficient to satisfy the mortgage debt, which the mortgagee received in satisfaction, and delivered the mortgage, which included the evidence of the debt, to the mortgagor. While the mortgagor was thus in possession of the mortgage, he sold the property sued for to Brooks & Co., for a valuable consideration, to whom he at the time showed the original mortgage, and stated that he had paid the same. The defendant purchased from Brooks & Co. The mortgagee, afterwards, and after suit had been instituted against him, paid the proceeds of the cotton to Daniel & Smith, who held a superior lien. The mortgagor’s possession of the note and mortgage was prima, facie evidence of its payment and discharge, though no entry of satisfaction was made on the margin of the record thereof. On the presumption of payment arising from the possession of the mortgage, a purchaser from the mortgagor may rely. The mortgagee and purchaser may both be innocent parties; but, in sucb case, tbe mortgagee, wbo furnished tbe mortgagor witb tbe means and. power to do tbe wrong, must bear tbe consequences.—Turner v. Flinn, 72 Ala. 530. Tbe vendee of tbe first purchaser, though be may have bad notice of tbe invalidity of tbe payment before paying tbe purchase-money, may protect himself by bis vendor’s want of notice.

Affirmed.